Human Rights in Northern Ireland: The CAJ Handbook 9781474201063, 9781849466158

Citation preview

FOREWORD BY ANTHONY LESTER QC

I am very pleased to have been invited to introduce the new edition of this timely, practical and important handbook on human rights in Northern Ireland, edited by Brice Dickson and Brian Gormally. In the 2003 edition, I wrote that Northern Ireland could set an example to the rest of the United Kingdom with its equality and human rights commissions and the work then proceeding to create a single Equality Bill. And I expressed the hope that on both sides of the Irish Sea there would be equal protection of human rights, and that the Republic of Ireland would soon enact legislation to incorporate the European Convention on Human Rights into Irish law. So much has changed since then, mostly for the worse. The funding of the two Northern Ireland Commissions has been slashed; progress on the Bill of Rights has stalled; work on the single Equality Bill for Northern Ireland has been abandoned (but has been successfully completed in Britain); and the Irish Republic has enacted a European Human Rights Convention Act that is weaker than the UK Human Rights Act in fettering the courts’ powers to develop the common law compatibly with the Convention rights. The Northern Ireland Government and Assembly neglect to use their devolved powers to apply the Defamation Act 2013 in place of the outmoded common law of libel, or to abolish the archaic common law crime of blasphemy. Under the flawed devolution scheme, there is no power to require the political branches of government to comply with the Convention, and the problems are left to the judiciary to tackle. In my view, we need a federal system to ensure that our fundamental rights and freedoms, anchored in the Convention, are given equal protection regardless of where we live and work in the UK. Meanwhile, the Home Secretary and Lord Chancellor threaten to scrap the Human Rights Act and weaken the supervisory jurisdiction of the Strasbourg Court if they win power in 2015. Like their Labour predecessors, they refuse to abide by the judgments of the Strasbourg Court to enfranchise convicted prisoners. They set a terrible example that is being copied by Europe’s pseudodemocracies. This is the wider and bleak context. The handbook grapples with problems of the here and now. It covers the entire spectrum of human rights and its authors are experienced experts in their fields. It provides accurate and practical help and advice to those who most need it. It deserves a wide audience within and beyond Northern Ireland, and is a model for similar handbooks in England, Scotland and Wales.

ACKNOWLEDGEMENTS

The production of this book has been the result of a great deal of collective effort over many years, mostly on the part of contributors but also on the part of other advisers. Particular thanks must go to Louise McNicholl, the former Communications Officer at the CAJ, who worked on the project during its early stages. Louise’s organisational skills were much missed after her departure from the CAJ. The influence of Stephen Livingstone, who sadly died in 2004, is evident in the book too, especially in Chapters 6 and 14. We are also grateful to Hart Publishing for agreeing to publish the book and for being so helpful during the production process. Gratitude is also extended to Lord Lester of Herne Hill QC for again writing a Foreword, and such a complimentary one at that. Several of the chapters, although revised for this edition by current experts, still bear the hallmarks of versions produced for one or more of the four editions of Civil Liberties in Northern Ireland: The CAJ Handbook, which appeared in 1990, 1993, 1997 and 2003. We are as grateful to those former authors as we are to the current ones, and also to the many other experts who were consulted by the contributors to ensure that what was being written in 2014 was accurate and clear. Brice Dickson and Brian Gormally

WHAT IS THE CAJ?

The Committee on the Administration of Justice (CAJ) was established in 1981 and is an independent non-governmental organisation affiliated to the International Federation of Human Rights. The CAJ takes no position on the constitutional status of Northern Ireland and is firmly opposed to the use of violence for political ends. Its membership is drawn from across the community. The Committee seeks to ensure the highest standards in the administration of justice in Northern Ireland by ensuring that the government complies with its responsibilities in international human rights law. The CAJ works closely with other domestic and international human rights groups such as Amnesty International, Human Rights First (formerly the Lawyers Committee for Human Rights) and Human Rights Watch and makes regular submissions to a number of United Nations and European bodies established to protect human rights. The CAJ’s activities include publishing reports, conducting research, holding conferences, campaigning locally and internationally, individual casework and providing legal advice. Its areas of work are extensive and include policing, emergency laws and the criminal justice system, equality and advocacy for a Bill of Rights for Northern Ireland. However, the CAJ would not be in a position to do any of this work without the financial help of its funders, individual donors and charitable trusts (since the CAJ does not take government funding). We would like to take this opportunity to thank Atlantic Philanthropies, Barrow Cadbury Trust, Hilda Mullen Foundation, Joseph Rowntree Charitable Trust, Oak Foundation, Esmée Fairbairn Foundation and UNISON. The organisation has been awarded several international human rights prizes, including the Reebok Human Rights Award and the Council of Europe Human Rights Prize.

NOTES ON CONTRIBUTORS

Les Allamby is the Chief Commissioner of the Northern Ireland Human Rights Commission and former Director of the Law Centre (NI). Rhyannon Blythe is a barrister and currently works at the Northern Ireland Human Rights Commission. The Children’s Law Centre is an independent charitable organisation which works towards a society where all children can participate, are valued, have their rights respected and guaranteed, and can achieve their full potential. Dr Evelyn Collins CBE is Chief Executive of the Equality Commission for Northern Ireland. Brice Dickson is Professor of International and Comparative Law at Queen’s University Belfast. Fiona Doherty is a Queen’s Counsel in Northern Ireland. Neil Faris practises as a solicitor in Belfast on an advisory basis in the areas of environmental law, property law and public law. Barry Fitzpatrick is a law and policy consultant. Sharon Geary is the Legal Information Officer at Housing Rights Service, the leading specialist provider of independent housing advice in Northern Ireland. Brian Gormally is Director of the Committee on the Administration of Justice. Anne Grimes is an Immigration Judge and a Deputy Judge of the Upper Tribunal (Immigration and Asylum Chamber). She is also a Parole Commissioner. Dr Michael Hamilton is a Senior Lecturer in Public Protest Law in the School of Law at the University of East Anglia. Dr Colin Harper is an Assistant Director of the Law Centre (NI) and works as an independent consultant in ethics, human rights and legal policy. John Jackson is a barrister and Professor of Comparative Criminal Law and Procedure at the University of Nottingham. Ann Jemphrey is an independent researcher based in Northern Ireland. Beverley Jones is a senior partner in Jones Cassidy Brett, a firm of solicitors in Belfast. George Kilpatrick qualified as a solicitor in 1993 and works in the Employment Rights Unit of Thompsons NI.

xiv

Notes on Section Contributors 0

Debbie Kohner is Secretary General of the European Network of National Human Rights Institutions in Brussels. Anthony Lester QC is a leading human rights barrister and a member of the House of Lords. Laura Lundy is Professor of Education Law and Children’s Rights in the School of Education at Queen’s University Belfast. Paul Mageean is a solicitor and Director of the Institute of Professional Legal Studies at Queen’s University Belfast. Caroline Maguire is an employment solicitor who works for the Law Centre (NI). Dr Louise Mallinder is Professor of Human Rights and International Law in the Transitional Justice Institute at the University of Ulster and Vice-Chair of the Committee on the Administration of Justice. Malachy McGowan is a barrister in Northern Ireland. Dr Gráinne McKeever is a reader in the School of Law at the University of Ulster and the Chair and Executive Director of the Law Centre (NI). Monica McWilliams is Professor of Women’s Studies in the Transitional Justice Institute at the University of Ulster. Dr Jacqueline Monahan works as an independent consultant. Rory O’Connell is Professor of Human Rights and Constitutional Law in the Transitional Justice Institute at the University of Ulster. Fidelma O’Hagan has worked as an immigration solicitor with the Law Centre (NI) for the past 15 years and currently specialises in representing victims of human trafficking. Dr Mary O’Rawe is a barrister and senior law lecturer currently acting as counsel to the Senior Coroner for Northern Ireland in the Stalker/Sampson series of ’ legacy inquests. Michael Potter is a barrister practising in Northern Ireland and England. Mark Reid is a solicitor in Northern Ireland. Hannah Russell is a legal researcher currently undertaking doctoral research at the School of Law at Queen’s University Belfast. Viviane Treacy was until recently Children’s Advocate at the Special Educational Needs Advice Centre (SENAC). Ciaran White is a senior lecturer in law, Director of the Ulster Law Clinic at the University of Ulster, and a practising barrister in Northern Ireland. Joanne White is a partner in Jones Cassidy Brett, a firm of solicitors in Belfast.

TABLE OF CASES

Readers who wish to read the full law reports of the cases cited in this book can search for them on websites such as www.bailii.org. Some of the Northern Ireland decisions are accessible as well through the website of the Northern Ireland Courts and Tribunals Service (www.courtsni.gov.uk) and decisions by the European Commission and Court of Human Rights can be accessed through hudoc.echr.coe.int. Decisions of the Court of Justice of the EU are accessible at http://curia.europa.eu/juris/recherche.jsf. A, B and C v Ireland, 2010 .......................................................................................... 246, 442 A v Secretary of State for the Home Department, 2004 ...................................................... 56 A v UK, 1998 ....................................................................................................................... 440 Abdul v DPP, 2011 ............................................................................................................... 197 Abou v Romania, 2011 ........................................................................................................ 247 ADT v UK, 2000 .................................................................................................................. 446 Age Concern case, 2009 ...................................................................................................... 402 Aksu v Turkey, 2012 ............................................................................................................ 210 Albert v Lavin, 1981 .............................................................................................................. 50 Alekseyev v Russia, 2010 ................................................................................................. 187–8 Alexander v Home Office, 1988 .......................................................................................... 342 Allen v Fire Authority for Northern Ireland, 2005 ............................................................ 315 Allonby v Accrington and Rossendale College, 2004 ........................................................ 294 Anderson v Information Commissioner, 2011 .................................................................. 186 Andersson and Kullman v Sweden, 1986 ........................................................................... 432 Animal Defenders International v UK, 2013 ..................................................................... 228 Anwar v Tower Hamlets College, 2010 .............................................................................. 352 Anyanwu v South Bank Students’ Union, 2001 ................................................................. 333 Appleby v UK, 2003 ......................................................................................................202, 229 Archibald v Fife Council, 2004 ........................................................................................ 360–1 Armstrong’s (Jane Elizabeth) Application, Re, 1998 ...........................................................184 Arrowsmith v UK, 1978 ........................................................................................................212 Arthur v Northern Ireland Housing Executive, 2007..........................................................361 Ash v McKennitt, 2006 ..........................................................................................................258 Ashingdane v UK, 1985 ........................................................................................................411 Ashworth Hospital Authority v MGN Ltd, 2002 .........................................................225, 239 ASLEF v UK, 2007 .................................................................................................................179 AT v Dulghieru, 2009 ............................................................................................................445 Attorney General for Jersey v Holley, 2005 ..........................................................................440 Attorney General v Blake, 2000 ............................................................................................226 Attorney General v Random House, 2009 ...........................................................................224 Attorney General v Scotcher, 2005 .......................................................................................224 Attorney General’s Reference (No 1 of 2006), 2006 ............................................................200 Attorney General’s Reference (No 2 of 2004), 2005 ............................................................443

xvi

Table of Cases

Austin v UK, 2012 .................................................................................................................203 Averill v UK, 2000 ...................................................................................................................83 Axel Springer AG and Von Hannover (No 2) v Germany, 2012 .........................................217 Aylott v Stockton-on-Tees BC, 2011 ....................................................................................356 Aziz v Trinity Street Taxis Ltd, 1988 .........................................................................301, 337–8 B (A Minor) (Wardship: Medical Treatment), Re, 1981 .....................................................414 B (Adult: Refusal of Medical Treatment), Re, 2002 .............................................................423 B and A v C, 2002 ......................................................................................................256–7, 259 B (Consent to Treatment), Re, 2002 .....................................................................................413 B v UK, 1988 ..........................................................................................................................432 Baiai v Secretary of State for the Home Department, 2008 ................................................434 Ballymaconnolly Sons of Conquerors, Re, 2012 .................................................................193 Barankevich v Russia, 2007...................................................................................................188 Barber v Guardian Royal Exchange Assurance Group, 1991 ......................................297, 307 Barraco v France, 2009..........................................................................................................200 Barton v Investec Henderson Crosthwaite Securities Ltd, 2003 .........................................300 Bateson v YMCA, 1980 .........................................................................................................302 BBC, Re (Attorney General’s Reference No 3 of 1999), 2000 .....................................252, 260 BBC Scotland v Souster, 2001 ...............................................................................................336 Begley, ex parte, 1997 ..............................................................................................................78 Belfast City Council v Miss Behavin’ Ltd, 2007 ...................................................................228 Belgian Linguistics Case (No 2), 1968..................................................................................512 Bellinger v Bellinger, 2000 ....................................................................................................446 Berrehab v The Netherlands, 1989 .......................................................................................432 Birmingham, Preston and Others v Wolverhampton Health Care NHS Trust, 2001 ........307 Birmingham City Council v Abdulla, 2012 .........................................................................298 Bisir v Moldova, 2011 ...........................................................................................................247 Bowman v UK, 1998 .....................................................................................................228, 442 Brannigan and McBride v UK, 1993 ......................................................................................58 Brennan v UK, 2001 ..........................................................................................................57, 80 British Airways v Grundy (No 2), 2008 ...............................................................................296 British Gas Services Ltd v McCaull, 2001 ............................................................................359 British Steel Corp v Granada Television Ltd, 1980 ..............................................................239 Brogan v UK, 1988 ............................................................................................................52, 58 Bromley v H & J Quick Ltd, 1988.........................................................................................293 Brooks v Commissioner of Police for the Metropolis, 2002 ...............................................388 Brown v Stott, 2001 .................................................................................................................81 Browne v Associated Newspapers Ltd, 2007 ........................................................................258 Brudell v Board of Governors, Ballykelly Primary School and Western Education and Library Board, 2010 ..................................................................318 Brunhoffer v Bank der Österreichischen Postsparkasse AG, 2001 .....................................295 Brutus v Cozens, 1972...........................................................................................................196 Bukta v Hungary, 2007..........................................................................................................185 Burton v De Vere’s Hotel, 1997.............................................................................................303 Buscarini v San Marino, 1999...............................................................................................228 Byers’ Application, Re, 2004..........................................................................................201, 448 C (Refusal of Medical Treatment), Re, 1994 ................................................................413, 422

Table of Cases

xvii

C-T v S-T, 2014 .....................................................................................................................305 Cadder v HM Advocate, 2010.................................................................................................79 Cadman v Health and Safety Executive, 2006 .....................................................................296 CAJ’s and Martin O’Brien’s Application, Re, 2005 ..............................................................105 Callaghan v Independent News & Media Ltd, 2009 ....................................................258, 260 Camenzind v Switzerland, 1997 ...........................................................................................249 Campbell v Mirror Group Newspapers, 2004 .................................................217, 256–7, 259 Carlisle v Chief Constable of the RUC, 1989 .........................................................................43 Carroll v Chief Constable of the RUC, 1988 .........................................................................50 CDS (PBS: ‘Available,’ Art 8) Brazil, 2010 ............................................................................161 Chacón Navas v Eurest Colectividades SA, 2007 .................................................................354 Chassagnou v France, 1999...................................................................................................192 Chief Constable of the PSNI v Devlin, 2008............................................................67, 73, 194 Chief Constable of the West Yorkshire Police v Khan, 2001 ...............................................338 Choudhury, ex parte, 1990 ...................................................................................................222 Christian Democratic People’s Party v Moldova (No 2), 2010 ...........................................187 Christian Institute’s Application for Judicial Review, Re, 2007 ..............................386, 393–4 Christie v Leachinsky, 1947 ....................................................................................................50 Clark v TDG Ltd t/a Novacold, 1999 ...................................................................................357 Clinton v Chief Constable of the RUC, 1991 ........................................................................53 Clinton v Watts, 1992 ....................................................................................................197, 199 Coleman v Attridge Law, 2008......................................................................................305, 356 College of Ripon and St John v Hobbs, 2002 ......................................................................351 Commission v Ireland, 2009.................................................................................................646 Commission v UK, 1983 ...............................................................................................303, 307 Condron v UK, 2000 ...............................................................................................................84 Convery v Irish News Ltd, 2008 ...........................................................................................215 Conway’s Application, Re, 2013 ...........................................................................................133 Cook v Carroll, 1945 ...............................................................................................................85 Cooke v Chief Constable of the RUC, 1989...........................................................................50 Coote v Granada Hospitality, 1998 ......................................................................................301 Corway v Independent Newspapers, 1999 ...........................................................................222 Costello-Roberts v UK, 1995 ................................................................................................247 CRE v Dutton, 1989 ..............................................................................................................336 Cream Holdings Ltd v Banerjee, 2004 .................................................................................216 Cross v British Airways plc, 2005 .........................................................................................297 Crown Suppliers (PSA) v Dawkins, 1991 ............................................................................336 CTB v News Group Newspapers Ltd, 2011..........................................................................260 Cullen v Chief Constable of the RUC, 2003 ..................................................................... 77–8 Danfoss, 1989 ........................................................................................................................297 DB’s Application, Re, 2014......................................................................................................63 De Haes and Gijsels v Belgium, 1998 ...................................................................................239 De Wilde, Ooms and Versyp v Belgium, 1971 .....................................................................413 Defrenne (No 2), 1976 ..........................................................................................................294 Demir and Baykara v Turkey, 2008 ......................................................................................179 Derbyshire County Council v Times Newspapers, 1993.....................................................214 Devlin v UK, 2001 ...........................................................................................................20, 320

xviii

Table of Cases

Dickson v UK, 2007 ..............................................................................................................447 Doherty v Belfast Tile Company ..........................................................................................337 Donaldson v UK, 2011 ..........................................................................................131, 201, 230 Donaldson’s Application, Re, 2008 ...............................................................................131, 201 Douglas v Hello!, 2001 ..........................................................................................................256 DPP v Chippendale, 2004 .....................................................................................................197 DPP v Mosley, 1999...............................................................................................................199 Drake v Chief Adjudication Officer, 1985............................................................................302 Dudgeon v UK, 2001....................................................................................... 20, 246, 383, 445 Duffy, Re, 2008 ..............................................................................................................184, 186 Duffy v Ulsterbus, 2007 ........................................................................................................316 Duffy’s Application, Re, 1992 .................................................................................................77 Duggan, ex parte, 1994 .........................................................................................................126 E v Chief Constable of the RUC, 2008 ...................................................................................62 E v UK, 2002 ..........................................................................................................................441 Edwards and anor (on the Application of the Environment Agency & ors (No 2)), 2013 ..............................................................................................646 Enderby v Frenchay Health Authority and Secretary of State for Health, 1994 ........................................................................................................296, 298 Enerji Yapi-Yol Sen v Turkey, 2009 .......................................................................................179 English v Thomas Sanderson Blinds Ltd, 2009 ...................................................................389 EOC for Northern Ireland, Re, 1988 ............................................................................... 300–1 Equal Opportunities Commission v Secretary of State for Trade and Industry, 2007 ............................................................................................................394 Essex County Council v F, 1993 ...........................................................................................460 Evans v UK, 2006–07 ...............................................................................................245–6, 447 Evelyn White’s Application, Re, 2000 ...................................................................................184 Evesham v North Hertfordshire Health Authority, 2000 ....................................................298 Eweida v UK, 2013 ................................................................................................386, 393, 396 Ezeh and Connors v UK, 2002 .............................................................................................136 Ezelin v France, 1991.............................................................................................................192 F (Mental Patient: Sterilisation), Re, 1989 ...................................................................... 422–3 F v Switzerland, 1987 ............................................................................................................435 Fáber v Hungary, 2012 ..............................................................................................187–8, 208 Family Planning Association of NI v Minister of Health, Social Services and Public Safety, 2004 .....................................................................................................442 Farah v Commissioner of Police for the Metropolis, 1998 .................................................388 Fareham College Corporation v Walters, 2009....................................................................361 Faulkner v UK, 2002 .............................................................................................................448 Financial Times v UK, 2009..................................................................................................225 Flynn and Debast v Malcolmson, Laurelhill Community College and South Eastern Education and Library Board, 2007 .................................................318 Fox’s and Canning’s Applications, Re, 2013...........................................................................36 Frette v France, 2002 .............................................................................................................432 Funke v France, 1993 ......................................................................................................81, 249 G and D (Risk of Forced Marriage: Forced Marriage Protection Order), Re, 2010 .............................................................................................................................434 Gallop v Newport City Council, 2013..................................................................................359

Table of Cases

xix

Galloway’s Application, Re, 2009....................................................................................85, 225 Geary and Dowling v Queen’s University Belfast, 1999 ......................................................337 Gichura v Home Office, 2008 .......................................................................................342, 388 Gill v NICEM, 2001 ..............................................................................................................313 Gillan and Quinton v UK, 2010 .....................................................................................42, 250 Gillespie v Various Health Boards, 1996 ..............................................................................304 Gillick v West Norfolk and Wisbech Area Health Authority, 1985–86 .......................413, 462 Glasgow City Council v Marshall, 2000 ...............................................................................295 Goldsmith v Bhoyrul, 1997...................................................................................................214 Goodwin v The Patent Office, 1999 .............................................................................350, 352 Goodwin v UK, 2002 ............................................................................................................446 Görgülü v Germany, 2004.....................................................................................................437 Griffiths v Reading University Students’ Union, 1997 ........................................................336 Guardian News and Media Ltd, Re, 2010.............................................................................225 Guerra v Italy, 1998 ...............................................................................................................640 Gulshan (Article 8—new rules—correct approach), 2013 .................................................160 GW, Re, 2009 .........................................................................................................................228 Halford v UK, 1997 ...............................................................................................................254 Hallam v Avery, 2001 ............................................................................................................333 Hammersmith and Fulham London Borough Council v Farnsworth, 2000 .............357, 359 Hammond v DPP, 2004 ........................................................................................................197 Hampson v Department of Education and Science, 1990 ..................................................335 Handyside v UK, 1976 ..................................................................................................187, 208 Harman v Secretary of State for the Home Department, 1983 ..........................................224 Hatton v UK, 2001 ................................................................................................................639 Hay case, 2013 .......................................................................................................................390 Hayward v Cammell Laird Shipbuilders Ltd, 1988 .............................................................297 Heino v Finland, 2011...........................................................................................................247 Hemsworth v UK, 2013 ..........................................................................................................20 Hicks, ‘M,’ Pearce and Middleton v Commissioner of Police of the Metropolis, 2014.....................................................................................................203 Hillingdon v Commission for Racial Equality, 1982 ...........................................................342 Hirst v UK (No 2), 2005 .......................................................................................................122 HJ Heinz & Co Ltd v Kenrick, 2000 ............................................................................... 357–8 HL v UK, 2004 .......................................................................................................................419 Homer v Chief Constable of West Yorkshire Police, 2012 ......................................404–5, 407 HRH Prince of Wales v Associated Newspapers Ltd, 2006 .........................................257, 260 Huntingdon Life Sciences Ltd v Curtin, 1997 .....................................................................199 Hutton v Rainbow Garland, 2013 ........................................................................................389 Hyde v Hyde, 1866 ................................................................................................................433 Ielo v Italy, 2005.....................................................................................................................215 Igen Ltd v Wong, 2005 ..........................................................................................................300 Ireland v UK, 1978 ................................................................................................................441 J v DLA Piper UK LLP, 2010 .................................................................................................352 Jameel v Wall Street Journal, 2006 .......................................................................................216 James, Well and Lee v UK, 2012 ...........................................................................................139 James v Eastleigh Borough Council, 1990 ...................................................................... 331–2 Jamstlldhetsombudsmannen v Orebro Lans Landsting, 2000............................................296

xx

Table of Cases

Jeremiah v Ministry of Defence, 1979 ..................................................................................302 JMCA v The Belfast Health and Social Care Trust, 2014 ....................................................419 Johnson v Ireland, 1968 ........................................................................................................435 Johnson v UK, 1997 ..............................................................................................................411 Johnston v BT, 2008–10 ........................................................................................................333 Johnston v Chief Constable of the RUC, 1987 ......................................................19, 308, 401 Johnston v Church of Scientology Mission Dublin, 1999 ....................................................85 Johnston v UK, 1987 .............................................................................................................432 Jones v Post Office, 2001 .......................................................................................................358 Jordan v UK, 2001 .............................................................................................................18, 20 Jordan’s Applications, Re, 2014 ..............................................................................................17 JR1’s Application, Re, 2011 ...................................................................................................202 JR21’s Application, Re, 2011 .........................................................................................274, 284 JR45’s Application, Re, 2011 .................................................................................................417 JR56’s Application (No 2), 2011 ...........................................................................................492 JR66’s Application, 2012 .......................................................................................................463 Jukes v DPP, 2013 ..................................................................................................................195 Kalacheva v Russia, 2009.......................................................................................................437 Kapadia v London Borough of Lambeth, 2001 ...................................................................354 Kay v Commissioner of the Police of the Metropolis, 2008................................................181 Kaye v Robertson, 1991.........................................................................................................216 Keegan v Ireland, 1994 ..................................................................................................432, 439 Kelly (John) v UK, 1993 ..........................................................................................................62 Kelso v Whitehead Golf Club, 2010 .....................................................................................389 Kennedy v Information Commissioner, 2014 .....................................................................234 Kenny v Hampshire Constabulary, 1999 .............................................................................359 Kenny v Minister for Justice, Equality and Law Reform, 2013 ...........................................296 Kent County Council v Mingo, 2000 ...................................................................................360 Khan v UK, 1986 ...................................................................................................................433 Kirby v Manpower Services Commission, 1980 ..................................................................337 KL v Finland, 2008 ................................................................................................................220 Kopp v Switzerland, 1998 .....................................................................................................245 Kudrevicˇius v Lithuania, 2013 ..............................................................................................200 Kulikaoskas v MacDuff Shellfish, 2009 ................................................................................305 Lacey v University of Ulster, 2006 ........................................................................................389 Lahtonen v Finland, 2012 .....................................................................................................212 Lanigan, McCotter and Tumelty v Chief Constable of the RUC, 1991 ..............................104 Laskey, Jaggard and Brown v UK, 1997................................................................................446 Lawrence v Regent Office Care Ltd, 2002 ............................................................................294 Leander v Sweden, 1987 ......................................................................................233–4, 249–50 Lee v News Group Newspapers Ltd, 2010....................................................................258, 260 Lennon v Department for Regional Development, 2012............................................313, 321 Lentia v Austria, 1993 ...........................................................................................................218 Leonard v Southern Derbyshire Chamber of Commerce, 2002 .........................................352 Levez v T H Jennings, 1999...................................................................................................298 Liberty v UK, 2008 ................................................................................................................254 Lindsay v Department of Employment and Learning, 2013 ..............................................403

Table of Cases

xxi

London Borough of Hounslow v Powell, 2011....................................................................574 London Clubs Management Ltd v Hood, 2001 ...................................................................359 Lopez Ostra v Spain, 1994 ....................................................................................................640 Loughran and Kelly v Northern Ireland Housing Executive, 1998 ............................313, 363 Lustig-Prean and Beckett v UK, 2000 ..................................................................................245 M (A Minor) (Disclosure of Material), Re, 1990.................................................................457 M (A Minor) (Secure Accommodation Order), Re, 1995...................................................467 Macartan Turkington Breen v Times Newspapers Ltd, 2000..............................................181 McAuley Catholic High School v CC, 2001 .........................................................................377 McAuley v EHSSB, 1990 .......................................................................................................293 McBride v UK, 2007 ................................................................................................................64 McBride’s Application, Re, 2001.............................................................................................64 McCafferty’s Application, Re, 2008 ......................................................................................201 McCann v UK, 1998 ................................................................................................................62 McCartan Turkington Breen v Times Newspaper, 2000 .....................................................215 McCarthy v Secretary of State for the Home Department, C-434/09, 2011 ......................164 McCaughey, Re, 2011 ......................................................................................................17, 105 McCaughey v Chief Constable of the PSNI, 2007 .................................................................18 McCaughey v UK, 2013 ..........................................................................................................20 McClure and Moos v Commissioner of Police of the Metropolis, 2012 ............................203 McConkey v The Simon Community, 2009 ................................................................142, 320 McCrea’s Application, Re, 2013 ............................................................................................134 McDonagh & Stokes v Event 22 Ltd, 2006 ...........................................................................333 McDonagh v Thom (t/a Royal Hotel Cookstown), 2007 ....................................................332 Macdonald v Advocate General for Scotland, 2003.............................................................303 McE, Re, 2009 ............................................................................................................80, 85, 255 McGinley and Egan v UK, 1998 ...........................................................................................234 McGlinchey’s Application, Re, 2013.....................................................................................137 McGuinness v UK, 1999 .......................................................................................................228 McKay v NIPSA, 1994 ...........................................................................................................312 McKelvey v McDermott, 2005 ..............................................................................................317 McKenna’s Application, Re, 1992 ...........................................................................................77 McKibben v Belfast Corporation, 1936 ...............................................................................198 McKinney’s Application, Re, 2004........................................................................................228 McManus, Re, 1990 ...............................................................................................................192 McNicol v Balfour Beatty Rail Maintenance Ltd, 2002 .......................................................351 McPolin v Department of Finance and Personnel, 2010 ....................................................297 McR’s Application, Re, 2002 ...........................................................................................21, 443 McShane v UK, 2002 .............................................................................................................224 Madden and Rhone, ex parte, 1982......................................................................................111 Magee v UK, 2000 .............................................................................................................20, 78 Magorrian v EHSSB, 1996 ....................................................................................................307 Malone v Metropolitan Police Commissioner (No 2), 1979 ..............................................253 Manchester City Council v Pinnock, 2010 ..........................................................................574 Mandla v Dowell Lee, 1983.............................................................................................. 335–6 Marchenko v Ukraine, 2009 .................................................................................................229 Marshall v Southampton and South-West Hampshire Area Health Authority, 1986..................................................................................................................307

xxii

Table of Cases

Maughan and McDonagh v Dawn Tecey t/a Just-in Boutique, 2000 .................................343 Mayor, Commonalty and Citizens of London v Samede, 2012 ..........................................202 MB (Medical Treatment), Re, 1997 ..............................................................................413, 422 Megyeri v Germany, 1992 .....................................................................................................411 Mengesha v Commissioner of Police for the Metropolis, 2013 ..................................... 203–4 Metrobus Ltd v Unite Union, 2009 ......................................................................................179 MGN v UK, 2011 ..................................................................................................................217 Miguel v The State, 2011.........................................................................................................74 Milosevic v Serbia, 2011 .......................................................................................................248 Miloslavsky v UK, 1995.........................................................................................................213 Ministry of Defence v DeBique, 2010 ..................................................................................334 Miranda v Home Secretary, 2014 ...........................................................................................38 MM (Tier 1 RSW, Art 8: ‘Private Life’) Zimbabwe, 2009 ....................................................160 Molnár v Hungary, 2008 .......................................................................................................185 Mooney and Cafolla v Andras House Ltd, 2008 ..................................................................314 Moore v Adman Publishing, 2011 ........................................................................................394 Morgan v Staffordshire University, 2002 .............................................................................352 Morgan’s (Paul) Application, Re, 2010.................................................................................130 Morton v South Ayrshire Council, 2002 ..............................................................................294 Mosley v UK, 2011 ................................................................................................217, 245, 260 Moustaquim v Belgium, 1991 ..............................................................................................432 Muldrew v Board of Governors of Larne Grammar, 2012 .................................................306 Murphy, Re, 1991 ..................................................................................................................192 Murphy v Board Telecom Eireann, 1988 .............................................................................293 Murphy v Ireland, 2004 ........................................................................................................220 Murray (John) v UK, 1996 ...........................................................................................77–8, 83 Murray (Margaret) v UK, 1993 ........................................................................................47, 59 Murray v DPP, 1994 ................................................................................................................90 Murray v Express Newspapers Plc, 2007 ..............................................................................258 Murray v UK, 1996..........................................................................................................20, 245 Nagarajan v London Regional Transport, 1999...........................................................332, 338 Nechiporuk Yonkalo v Ukraine, 2011 ....................................................................................79 Neill v Belfast Telegraph Newspapers Ltd, 2002 ..................................................................313 Neill’s Application, Re, 2005 ............................................................................................ 283–4 Neilly v Mullaghboy Private Nursing Home, 1991..............................................................314 NICCY’s Application, Re, 2009 ..............................................................................................25 Niemetz v Germany, 1992.....................................................................................................432 NIHRC’s Application, Re, 2002 ..............................................................................................26 NIHRC’s Application, Re, 2013 ......................................................................................26, 438 North v Dumfries and Galloway Council, 2013 ..................................................................294 North Western Health Board v McKenna, 2005 ..................................................................304 Northern Health and Social Services Board v Fair Employment Commission for Northern Ireland, 1994 .........................................................................301 Norwich Pharmacal Co v Customs and Excise Commissioners, 1974...............................239 Norwood v UK, 2004 ................................................................................................187, 196–7 Nottingham City Transport Ltd v Harvey, 2013..................................................................360 NS v Secretary of State for the Home Department, 2012 ...................................................286 Nurzynski v Poland, 2011 .....................................................................................................247

Table of Cases

xxiii

O’Donoghue v UK, 2010 ......................................................................................................434 O’Halloran v UK, 2007 ...........................................................................................................81 O’Hara v Chief Constable of the RUC, 1997 .........................................................................52 O’Hara v UK, 2001 ..................................................................................................................52 O’Moran v DPP, 1975 ...........................................................................................................201 Oneryildiz v Turkey, 2004 ................................................................................................ 638–9 Open Door Counselling Ltd and the Dublin Well Woman Centre v Ireland, 1992......................................................................................................220, 233, 442 Opuz v Turkey, 2009 .............................................................................................................440 O’s Application, Re, 2008 ......................................................................................................251 Oscar v Chief Constable of the RUC, 1992............................................................................56 Osman v UK, 2000 ................................................................................................................638 Ostendorf v Germany, 2013..................................................................................................203 Ostrovar v Moldova, 2005 ....................................................................................................448 O’Sullivan v Herdmans Ltd, 1987 ........................................................................................239 Owens and Briggs v James, 1982 ..........................................................................................331 Oxfordshire County Council v M, 1994 ..............................................................................461 P, C and S v UK, 2002............................................................................................................439 Panesar v Nestlé Co Ltd, 1980 ..............................................................................................335 Panovits v Cyprus, 2008..........................................................................................................79 Parsons’ Application, Re, 2003..............................................................................................319 Paterson v Commissioner of Police of the Metropolis, 2007 ..............................................354 Pay v Lancashire Probation Service, 2003 ............................................................................229 Peck v UK, 2003 ............................................................................................................245, 253 Pelan, Re, 1998.......................................................................................................................192 Percy v DPP, 2001 ..................................................................................................................196 PF and EF v UK, 2010 .....................................................................................................63, 187 Pickstone v Freeman’s Mail Order Ltd, 1988 .......................................................................293 Pierre-Bloch v France, 1997..................................................................................................186 Pini v Romania, 2005 ....................................................................................................432, 438 Plattform Ärzte für das Leben v Austria, 1988 ....................................................................188 Police Service of Northern Ireland v McClure, 2007 ..........................................................182 Power v Panasonic UK Ltd, 2003 .........................................................................................352 Powlesland v DPP, 2013 ................................................................................................181, 185 PR (Sri Lanka) v Secretary of State for the Home Department, 2011 ...............................174 Preddy v Hall, 2013 .................................................................................................386, 389–90 Preston v Wolverhampton Health Care NHS Trust, 2001 ..................................................298 Pretty v UK, 2002 ..................................................................................................................246 Qadus v Henry Dobinson (Ironfounders) Ltd, 1980 ..........................................................337 R (A Minor) (Wardship: Consent to Treatment), Re, 1992 ................................................414 R (A) v Secretary of State for the Home Department, 2003 ...............................................230 R (Animal Defenders International) v Secretary of State for Culture Media and Sport, 2008......................................................................................................228 R (Baker) v Secretary of State for Communities and Local Government, 2008 ................274 R (Brown) v Secretary of State for Work and Pensions, 2008 ............................................274 R (Buglife: the Invertebrate Conservation Trust) v Medway Council, 2011 ......................644 R (Chester) v Secretary of State for Justice, 2013 ................................................................122 R (Corner House Research) v Secretary of State for Trade and Industry, 2005.................645

xxiv

Table of Cases

R (Domb) v London Borough of Hammersmith and Fulham, 2009.................................274 R (E) v JFS Governing Body, 2009 .......................................................................300, 332, 336 R (Farrakhan) v Secretary of State for the Home Department, 2002 ................................228 R (GC and C) v Commissioner of Police for the Metropolis, 2011 ...................................252 R (Gillan) v Commissioner of Police for the Metropolis, 2006 ....................................42, 250 R (Green) v Police Complaints Authority, 2002 ..................................................................104 R (Kaur and Shah) v London Borough of Ealing, 2008 ......................................................281 R (Laporte) v Chief Constable of Gloucestershire, 2006 ......................................51, 198, 203 R (Munjaz) v Ashworth Hospital Authority, 2005 ..............................................................411 R (Nilsen) v Full Sutton Prison Governor, 2004 .................................................................229 R (Pro Life Alliance) v BBC, 2003 ........................................................................................218 R (PW) v Commissioner of Police for the Metropolis, 2006 ..............................................182 R (Razgar) v Secretary of State for the Home Department, 2013 ......................................160 R (Rusbridger) v Attorney General, 2003 ............................................................................211 R (S) v Chief Constable of South Yorkshire Police, 2004 ............................................... 251–2 R v Beckles, 2004 .....................................................................................................................84 R v Becouarn, 2005 .................................................................................................................91 R v Blackshaw, 2011 ..............................................................................................................199 R v Blaney, 2004 ................................................................................................................72, 78 R v Bothwell, 2008...................................................................................................................74 R v Brown, 2012 ..........................................................................................................10, 69–70 R v Burcombe, 2008 ................................................................................................................88 R v Camplin, 1978 .................................................................................................................440 R v Chief Constable of the RUC, ex parte Adams, 2000 .......................................................10 R v Chief Constable of West Midlands, ex parte Wiley, 1995 .............................................104 R v Clegg, 1995 and 2002 ........................................................................................................64 R v Cleveland County Council, ex parte CRE, 1990 ...........................................................341 R v Cosgrove and Morgan, 1994 ............................................................................................77 R v Daniels, 2011 .....................................................................................................................89 R v Deputy Governor of Parkhurst Prison, ex parte Hague, 1992 .......................................68 R v Derby Magistrates Court, ex parte B, 1995 .....................................................................80 R v Entry Clearance Officer, Bombay, ex parte Amin, 1983 .......................................302, 342 R v Flynn and Leonard, 1972..................................................................................................75 R v Fulton, 2006 ......................................................................................................................74 R v Fulton, 2009 ......................................................................................................................74 R v Haddock, 2012 ........................................................................................................... 87–90 R v Harper, 1990......................................................................................................................77 R v Hasan, 2005 .............................................................................................................68–9, 73 R v Heagney, 2012 .................................................................................................................198 R v Hoare, 2004 .......................................................................................................................84 R v Holding, 2005 .................................................................................................................228 R v Home Secretary, ex parte Hickey (No 2), 1995 .............................................................104 R v Howell, 1981 .............................................................................................................51, 198 R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department, C-370/90, 1992 ......................................164 R v Jones, 2007 ........................................................................................................................83 R v Keys, 1986........................................................................................................................200 R v Khan, 1996 ........................................................................................................................41

Table of Cases

xxv

R v King, 2000 .........................................................................................................................70 R v Knight, 2003 ......................................................................................................................83 R v McBrien and Harman, 1984.............................................................................................73 R v McCartan and Skinner, 2008............................................................................................83 R v McDonald, 1989 .............................................................................................................443 R v McKeown, 2006 ..........................................................................................................70, 74 R v McKeown, 2013 ..............................................................................................................198 R v McMullan, 2012 ..............................................................................................................198 R v McWilliams, 1996 .............................................................................................................77 R v Magee, 2001 ......................................................................................................................20 R v Makanjuola, 1995 .............................................................................................................89 R v Martin, 1991......................................................................................................................82 R v Matyas Pis; R v Rong Chen, 2012 ..................................................................................445 R v Mohammad, 2009.............................................................................................................83 R v Mushtaq, 2005.............................................................................................................69, 73 R v Najeeb, 2003 ....................................................................................................................198 R v Norfolk County Council, ex parte M, 1989...................................................................457 R v O’Donnell, 2010................................................................................................................90 R v P, R v Blackburn, 2007 ......................................................................................................88 R v R, 1991 .............................................................................................................................443 R v Robinson, 2003 .................................................................................................................74 R v Samuel, 1988 .....................................................................................................................77 R v Sandhu, 2009.....................................................................................................................77 R v Sang, 1979 .........................................................................................................................73 R v Secretary of State for the Environment Transport and Regions, ex parte Alconbury Developments, 2001 .........................................................................641 R v Secretary of State for the Home Department, ex parte Simms, 2002 ..........................230 R v Shayler, 2002 ...................................................................................................................226 R v Webber, 2004 .....................................................................................................................83 R (Wilkinson) v Broadmoor RMO and others, 2002..........................................................424 Rankin v Procurator Fiscal, 2004 .........................................................................................201 Raymond v Honey, 1982.......................................................................................................120 Redcar and Cleveland Borough Council v Bainbridge (No 2), 2008 ............................ 296–7 Rees v UK, 1987.....................................................................................................................433 Rice v Connolly, 1966 .......................................................................................................35, 81 Richmond Adult Community College v McDougall, 2008 ................................................353 Ridout v TC Group, 1998 .....................................................................................................359 Robins v Norfil Ltd, 1997......................................................................................................336 Rodriguez, 2009.....................................................................................................................391 Rosbotham v Department for Social Development, 2009 ..................................................389 Rose v Bouchet, 1999 ............................................................................................................368 Ruiz Zambrano v Office national de l’emploi (ONEM), C-34/09, 2011............................164 Russell’s Application, Re, 1996 ...............................................................................................78 S and Marper v UK, 2009 ...............................................................................................60, 252 S v France, 1990 .....................................................................................................................640 S v Plymouth City Council (C as interested Party), 2002 ...................................................418 SA (Vulnerable Adult with Capacity: Marriage), Re, 2005 .................................................412 Salduz v Turkey, 2008..............................................................................................................79

xxvi

Table of Cases

Salford NHS Primary Care Trust v Smith, 2011 ..................................................................362 Savjani v Inland Revenue Commissioners (IRC), 1981 ......................................................342 SC v UK, 2005 .......................................................................................................................475 SCA Packaging v Boyle, 2009 ...............................................................................................352 Schalk and Kopf v Austria, 2010...........................................................................................433 Schloendorff v Society of New York Hospital, 1914............................................................422 Schlumpf v Switzerland, 2009 ..............................................................................................447 Schmidberger v Republik Österreich, 2003 .........................................................................200 Schönheit v Stadt Frankfurt am Main, 2004 .......................................................................296 Schwabe and MG v Germany, 2011 .....................................................................................203 Seckerson v UK, 2012............................................................................................................224 Secretary of State for Justice v James, 2009..........................................................................139 Seide v Gillette Industries Ltd, 1980.....................................................................................336 Seldon v Clarkson Wright & Jakes, 2012..............................................................................402 SH v Austria, 2010 .................................................................................................................447 Shackell v UK, 1999...............................................................................................................601 Shamoon v Chief Constable of the Royal Ulster Constabulary, 2003 ................................302 Sheffield City Council v Norouzi, 2011 ...............................................................................394 Showboat Entertainment Centre v Owens, 1984 ................................................................331 S‚ilih v Slovenia, 2009 .............................................................................................................105 Simpson v UK, 1989..............................................................................................................513 Sinn Féin’s Application, Re, 2003 .........................................................................................228 Soderback v Sweden, 1998 ....................................................................................................432 Southampton City College v Randall, 2006 .........................................................................361 Steel and Morris v UK, 2005.................................................................................................213 Steel v Goacher, 1982 ..............................................................................................................43 Sunday Times v UK, 1979.....................................................................................................223 T, Re, 2002 .............................................................................................................................465 T and V v UK, 2000 ...............................................................................................................475 Tarbuck v Sainsbury’s Supermarkets Ltd, 2006 ...................................................................361 Társaság a Szabadságjogokért v Hungary, 2009 ..........................................................229, 234 Tele Danmark v Handels-Og Kontorfunktionaerernes Forbund I Danimark and Jimenez-Melgar v Ayuntamiento de los Barrios, 2001 ............................................304 Theakston v MGN Ltd, 2002 ................................................................................................257 Thomas v News Group Newspapers Ltd, 2002 ....................................................................199 Thompson v Luke Delaney and George Stobbart Ltd, 2011 ...............................................315 Thompson’s (Ciara) Application, Re, 2010..........................................................................645 Times Newspapers v UK, 2009 .............................................................................................221 Toye v Chief Constable of the RUC, 1991..............................................................................50 TP v West London Youth Court, 2005 .................................................................................475 Tweed, Re, 2007 .....................................................................................................................192 Tweed, Re (No 1), 2001 .........................................................................................................192 Tweed, Re (No 5), 2009 .................................................................................................... 192–3 Tweed v Parades Commission, 2006 ....................................................................................186 Tweed’s Application (No 5), 2009 ................................................................................186, 189 Uniplex (UK) Ltd v NHS Business Services Authority, 2010..............................................644 University of Oxford v Broughton, 2004, 2006 and 2008 ...................................................200 Vallianatos v Greece, 2013 ........................................................................................395–6, 433

Table of Cases

xxvii

Venables and Thompson v News Group Newspapers, 2001 ...............................218, 257, 259 Vermeire v Belgium, 1993 .....................................................................................................432 Vicary v British Telecommunications Plc, 1999 ..................................................................354 Von Hannover v Germany, 2004 ..........................................................................245, 257, 259 Von Hartz v Bilka Kaufhaus GmbH, 1986 ...........................................................................295 Vona v Hungary, 2013 ...........................................................................................................189 W, Re, 1992 ............................................................................................................................462 W (A Minor) (Medical Treatment: Court’s Jurisdiction), Re, 1993 ...................................414 Wakeford v UK, 1990 ............................................................................................................432 Wallace v South-Eastern Education and Library Board, 1980............................................300 Ward v Police Service of Northern Ireland, 2007 ..................................................................58 Webb v EMO Air Cargo (UK) Ltd, 1994..............................................................................304 Wheeler v Leicester City Council, 1985 ...............................................................................345 White v Clitheroe Grammar School, 2002...........................................................................369 Wilson v Health and Safety Executive, 2009 ........................................................................297 Wilson v UK, 2012 ..................................................................................................................20 Winterwerp v Netherlands, 1979 .........................................................................................411 Woodcock v Cumbria Primary Health Care Trust, 2012 ....................................................403 Wright v Commissioner of Police for the Metropolis, 2013 ...............................................203 X, Y and Z v UK, 1997...................................................................................................247, 432 X v Belgium and Netherlands, 1974.....................................................................................438 X v France, 1986 ....................................................................................................................438 X v Germany, 1966 ................................................................................................................448 X v Mid Sussex Citizens Advice Bureau, 2013 .....................................................................355 X v Netherlands, 1966 ...........................................................................................................448 X v UK, 1978 .........................................................................................................................513 X v UK, 1986 .........................................................................................................................432 XY v Rainbow Garland, 2013 ...............................................................................................389 YB (EEA Reg 17(4)—Proper Approach) Ivory Coast, 2008 ...............................................166 Z v A Government Department, 2014 .................................................................................305 Z v UK, 2001..........................................................................................................................441 ZH (Tanzania) v Secretary of State for the Home Department, 2011 ...............................161 Ziliberberg v Moldova, 2004.................................................................................................187

TABLE OF LEGISLATION

European Union Burden of Proof Directive 97/80/EC............................................................................292, 330 Charter of Fundamental Rights ..................................................................... 3, 5, 19, 208, 286 Art 11 .................................................................................................................................208 Art 21 .................................................................................................................................330 Pt IV.................................................................................................................................3, 19 Citizens Directive 2004/38/EC .............................................................................................162 Data Protection Directive 95/46/EC ....................................................................................240 Directive 2003/9/EC ..............................................................................................................447 Directive 2008/164/EC ..........................................................................................................374 Directive 2010/41/EU ...........................................................................................................292 Directive 2011/92/EU ...........................................................................................................633 Directive 2014/52/EU ...........................................................................................................633 Employment Equality Framework Directive 2000/78/EC ........... 266, 268, 305, 312, 315–16, 318, 320, 330, 349, 356, 384, 388, 390, 392–5, 399–401, 406 Recital 15 ...........................................................................................................................392 Art 2(2)(a) .........................................................................................................................401 Art 2(2)(b).........................................................................................................................392 Art 2(3) ......................................................................................................................394, 406 Art 6 .............................................................................................................................. 401–3 Art 6(1) ..............................................................................................................................401 Art 15 .........................................................................................................................266, 319 Art 15(2) ............................................................................................................................266 Environmental Impact Assessment Directive 85/337/EEC .................................................633 Environmental Impact Assessment Directive 97/11/EEC ...................................................633 Equal Opportunities and Equal Treatment Directive 2006/54/EC.....................292, 299, 305 Art 4 ...................................................................................................................................292 Equal Pay Directive 75/117/EEC ..................................................................................... 292–3 Equal Treatment Directive 76/207/EEC ...............................................................................292 Equal Treatment Directive 2002/73/EC ...............................................................................299 Equal Treatment in Occupational Social Security Schemes Directive 86/378/ EEC .........292 Fixed-Term Workers Directive 99/70/ EC ............................................................................292 Framework Directive on Parental Leave 96/34 ....................................................................292 Framework Parental Leave Directive 2010/18/EU...............................................................292 Habitats Directive 92/43/EEC ..................................................................................636–8, 648 Art 6 ...................................................................................................................................637 Human Trafficking Directive................................................................................................445 Maastricht Treaty 1992 .............................................................................................................2 Part-Time Workers Directive 97/81/EC ...............................................................................292 Pregnant Workers Directive 92/85/EEC...............................................................292, 299, 305

xxx

Table of Legislation

Public Access to Environmental Information Directive 2003/4/EC ...................................630 Race and Ethnic Origin Directive 2000/43/EC ................ 266, 268, 330, 384, 387, 390, 392–4 Regulation No 604/2013 .......................................................................................................158 Right of Access to a Lawyer in Criminal Proceedings Directive 2013 ..................................79 Treaty of Amsterdam 1997 .......................................................................................................2 Art 141 ...............................................................................................................................292 Treaty of Lisbon 2007 .................................................................................................3, 19, 286 Treaty of Rome 1957, Art 119 .......................................................................................... 292–3 Treaty on the European Union (TEU) .................................................................................286 Art 2 ...................................................................................................................................286 Art 3 ...................................................................................................................................286 Treaty on the Functioning of the EU (TFEU) Art 157 .......................................................................................................................292, 295 Art 267 .................................................................................................................................19 Wild Birds Directive 2009/147/ EC ......................................................................................637 Working Time Directive 2003/88/EC...................................................................................525 Young Workers Directive 94/33/EC .....................................................................................526 International Aarhus Convention .....................................................................................629–30, 633, 646–7 Art 9 ...................................................................................................................................645 American Declaration of the Rights and Duties of Man ................................................... 1–2 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 .............................................................2–3, 451 Convention for the Protection of All Persons from Enforced Disappearance 2006 ..............................................................................................................2 Convention on the Elimination of All Forms of Discrimination Against Women 1979 ........................................................................................2–3, 287, 451 Convention on the Elimination of All Forms of Racial Discrimination 1965 ......................................................................... 2–3, 210, 287, 329, 451 Convention on the Rights of All Migrant Workers and Members of their Families 1990 ...................................................................................................... 2–3 Convention on the Rights of Persons with Disabilities 2006..................... 2–3, 287, 381, 413, 451, 453, 513 Convention on the Rights of the Child 1989 .................................... 2–3, 7, 25, 161, 287, 438, 441, 451–3, 478 Art 9 ...................................................................................................................................437 Art 12 .........................................................................................................................503, 513 Art 12(1) ............................................................................................................................441 Art 28 .................................................................................................................................513 Art 29 .................................................................................................................................513 Art 37(c) ....................................................................................................................447, 478 Declaration on the Rights of Mentally Retarded Persons ...................................................413 European Charter for Regional and Minority Languages...................................................287 European Convention for the Protection of Human Rights and Fundamental Freedoms ...............1, 3–6, 9, 19, 21–3, 25, 36, 41–2, 47, 51, 57–9, 62, 75, 79, 105, 120, 140, 156, 160, 170, 179–80, 186, 188, 192, 207–8, 210, 215, 229, 233–4, 239, 243–4, 251, 254, 259, 319, 327, 329, 383, 410–11, 431–3, 437, 441–3, 446–8, 451–3, 475, 504–5, 512–13, 574, 601, 638–9, 641–2

Table of Legislation

xxxi

Art 2 ..................................................................................17, 62, 64, 105, 159, 447, 638, 640 Art 3 ......................................................................62, 75, 159, 187, 410–11, 440–1, 504, 513 Art 5 ............................................................................53, 56, 58, 203, 410–11, 413, 419, 467 Art 5(1)(c) ...........................................................................................................................52 Art 5(2) ................................................................................................................................53 Art 5(4) ......................................................................................................................139, 411 Art 6 ...................................41, 74, 78, 81, 83, 126, 136, 186, 239, 439, 441, 475, 639, 641–2 Art 6(1) ........................................................................................................ 79, 186, 411, 431 Art 6(2) ................................................................................................................................36 Art 6(3) ..........................................................................................................................78, 80 Art 6(3)(c) ...........................................................................................................................57 Art 8 .........................................................................36, 41–2, 60, 74, 80, 156–7, 160–1, 174, 186, 189, 210, 229, 234, 243–7, 249–52, 254–6, 258–60, 383, 395–6, 410, 412, 431–3, 437–9, 442–3, 446–8, 513, 574, 601, 639–42 Art 8(1) ...................................................................................................... 137, 254, 412, 641 Art 8(2) .............................................................................................. 127, 245, 412, 448, 641 Art 9 ...................................................................................................................187, 396, 513 Art 10 ...........................................................128, 186–7, 189, 196, 199, 202, 207–8, 212–13, 217, 219, 224–5, 228–9, 233–4, 259–60, 442, 513 Art 10(1) ............................................................................................................................208 Art 10(2) ................................................................................................................127–8, 197 Art 11 .....................................................................................................................179, 186–7 Art 11(1) ....................................................................................................................... 186–7 Art 11(2) .................................................................................................... 180, 188, 192, 200 Art 12 .................................................................................................431, 433–5, 438, 446–7 Art 13 ...........................................................................................................................21, 639 Art 14 ......................................................................... 188, 285, 395–6, 434, 438, 447–8, 601 Art 15 .............................................................................................................................53, 58 Art 17 .........................................................................................................................187, 208 Art 34 ...........................................................................................................................21, 224 Protocol 1 Art 1 ...............................................................................................................202, 639, 642 Art 2 .........................................................................................................504, 506, 512–13 Art 3 ...............................................................................................................................122 Protocol 4, Art 2 ................................................................................................................203 Protocol 12 ................................................................................................................285, 329 Art 1 ...............................................................................................................................285 European Social Charter 1961 ..........................................................................................2, 287 Framework Convention on the Protection of National Minorities ...................................287 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption 1995 ......................................................................439 International Covenant on Civil and Political Rights 1966 ...............................2–4, 179, 207, 210–11, 287, 451 Art 19 .................................................................................................................................207 Art 20 .................................................................................................................................210 Art 21 .................................................................................................................................179 Art 22 .................................................................................................................................179 Art 26 .................................................................................................................................329

xxxii

Table of Legislation

International Covenant on Economic, Social and Cultural Rights 1966 ..................................................................................... 2, 287, 329, 451 Optional Protocol to the Convention Against Torture (OPCAT) ......................................125 Protocol to Prevent, Suppress and Punish Trafficking in Persons 2000, Art 3(a) ..............445 Ramsar Convention on Wetlands 1971................................................................................637 UN Convention on the Rights of Persons with Disabilities (UNCRPD)...................269, 451 Art 33(2) ............................................................................................................................269 UN Convention on the Status of Refugees ..................................................................158, 170 UN Principles for Older Persons ........................................................................................7, 26 Universal Declaration of Human Rights 1948.................................................................... 1–2 Art 2 ...................................................................................................................................287 Art 7 ...................................................................................................................................287 Art 19 .................................................................................................................................207 National Northern Ireland Access to Justice (NI) Order 2003 ....................................................................................15, 18 Access to the Countryside (NI) Order 1983 ........................................................................182 Additional Paternity Leave Regulations (NI) 2010 .............................................................533 Adoption (Intercountry Aspects) Act (NI) 2001 .................................................................439 Adoption (NI) Order 1987 ...................................................................................................438 Age of Majority Act (NI) 1969 s 1(1) ..................................................................................................................................413 s 4 ...............................................................................................................................414, 462 Age of Marriage Act (NI) 1951 .............................................................................................433 Agency Workers Regulations (NI) 2011...............................................................................522 Arrangement for Placement of Children (General) Regulations (NI) 1996 ......................464 Belfast (Good Friday) Agreement 1998 .............................................. 6, 192, 200, 264–5, 271, 275, 287, 320 Betting and Gaming (NI) Order 2004 .................................................................................528 Births and Deaths Registration (NI) Order 1976, art 34 ....................................................241 Child Support (NI) Order 1991 ...........................................................................................437 Child Support (NI) Order 1995 ...........................................................................................437 Children (Allocation of Proceedings) Order (NI) 1996 .....................................................458 Children and Young Persons Act (NI) 1968 ........................................................................458 s 22 .....................................................................................................................................444 Children (Leaving Care) Act (NI) 2002 ...............................................................................467 Children (NI) Order 1995 ........................................................ 412, 417, 436, 438, 451–2, 465 art 3 ....................................................................................................................437, 459, 488 art 5(8)...............................................................................................................................464 art 6 ....................................................................................................................................493 art 8 ....................................................................................................................437, 460, 464 art 17 ..................................................................................................................................452 art 18 ..................................................................................................................................453 art 18(3).............................................................................................................................453 art 18(6).............................................................................................................................453 art 19(1).............................................................................................................................454

Table of Legislation

xxxiii

art 20 ..................................................................................................................................454 art 21 ..................................................................................................................................463 art 21(1).............................................................................................................................464 art 25 ..................................................................................................................................493 art 26(5).............................................................................................................................467 art 34A ...............................................................................................................................467 art 44 ..................................................................................................................................466 art 50 ..................................................................................................................................417 art 50(2).............................................................................................................................461 art 50(3).....................................................................................................................453, 457 art 50(4).............................................................................................................................462 art 53 ..................................................................................................................................461 art 54 ..................................................................................................................................461 art 55 ..................................................................................................................................488 art 57(2).............................................................................................................................461 art 57A ...............................................................................................................................461 art 60 ..................................................................................................................................462 art 62 ..................................................................................................................................459 art 63 ..................................................................................................................................460 art 63(6).............................................................................................................................460 art 65 ..................................................................................................................................460 art 66 ..................................................................................................................................456 art 119 ................................................................................................................................454 art 124 ................................................................................................................................455 art 125 ................................................................................................................................455 art 164(4)...........................................................................................................................458 Pt IV...................................................................................................................................452 Sch 2, para 6 ......................................................................................................................459 Sch 3 para 4 .............................................................................................................................417 para 6 .............................................................................................................................417 Children (Private Arrangements for Fostering) Regulations (NI) 1996 ............................465 Children (Secure Accommodation) Regulations (NI) 1996 ...............................................466 reg 3 ...................................................................................................................................467 reg 6 ...................................................................................................................................467 Children’s Evidence (NI) Order 1995 ............................................................................. 457–8 Children’s Homes Regulations (NI) 2005 ............................................................................465 reg 16(4)(b) .......................................................................................................................466 Cinemas (NI) Order 1991.....................................................................................................220 Commission for Victims and Survivors Act (NI) 2008 .........................................................26 Commission on Disposals of Land (NI) Order 1986..........................................................587 Commissioner for Children and Young People (NI) Order 2003 ................................25, 399 art 6(1)...............................................................................................................................399 Commissioner for Complaints (NI) Order 1996 ..................................................................23 Commissioner for Older People Act (NI) 2011...................................................................399 s 2(1) ..................................................................................................................................399 Companies (NI) Order 1986 ................................................................................................241

xxxiv

Table of Legislation

Conservation (Natural Habitats, etc) Regulations (NI) 1995.............................................637 Coroners Act (NI) 1959 ..........................................................................................................16 Coroners (Practice and Procedure) Rules (NI) 1963 ............................................................16 r 2(1) ....................................................................................................................................18 r 7(1) ....................................................................................................................................18 r 9(2) ....................................................................................................................................17 r 13(1) ..................................................................................................................................17 r 16 .......................................................................................................................................17 Costs Protection (Aarhus Convention) Regulations (NI) 2013 .........................................646 County Court Rules (NI) 1981, Order 15 ............................................................................239 County Courts (NI) Order 1980, art 28...............................................................................480 Criminal Attempts and Conspiracy (NI) Order 1983 art 9 ....................................................................................................................................209 art 9(1)...............................................................................................................................179 Criminal Damage (NI) Order 1977 .....................................................................................209 Criminal Evidence (NI) Order 1988 .................................................................... 35, 67, 71, 78 art 3 ..............................................................................................................................82, 472 art 4 ......................................................................................................................................90 art 5 ......................................................................................................................................82 art 6 ......................................................................................................................................82 Criminal Evidence (NI) Order 1999 ..................................................................10–11, 86, 458 Criminal Justice Act (NI) 1945, s 25 ....................................................................................441 Criminal Justice Act (NI) 1953, s 9(1) .................................................................................121 Criminal Justice Act (NI) 2013 ss 6 and 7 ...........................................................................................................................445 s 9 .........................................................................................................................................61 s 12 .....................................................................................................................................223 Sch 2.....................................................................................................................................61 Criminal Justice (Children) (NI) Order 1998 .............................................................468, 476 art 3A .................................................................................................................................473 art 5 ....................................................................................................................................474 art 6 ....................................................................................................................................470 art 7 ....................................................................................................................................470 art 8 ....................................................................................................................................470 art 9 ....................................................................................................................................469 art 10 ............................................................................................................................73, 469 art 10A ...............................................................................................................................473 art 12 ..................................................................................................................................470 art 13(1)(a) ........................................................................................................................471 art 13(1)(b) .......................................................................................................................471 art 13(1A) ..........................................................................................................................471 art 13(1B) ..........................................................................................................................471 art 13(1BB) ........................................................................................................................471 art 15 ..................................................................................................................................474 art 17 ..................................................................................................................................474 art 22 ..................................................................................................................................225 art 27(4).............................................................................................................................474

Table of Legislation

xxxv

art 32 ..................................................................................................................................474 art 35 ..................................................................................................................................477 art 36 ..................................................................................................................................477 art 39 ..................................................................................................................................477 art 40 ..................................................................................................................................477 art 41 ..................................................................................................................................477 art 45 ..................................................................................................................................479 art 46 ..................................................................................................................................480 arts 47–48 ..........................................................................................................................478 art 53 ..................................................................................................................................477 Sch 1A ................................................................................................................................476 Criminal Justice (Miscellaneous Provisions) Act (NI) 1968 s 9 .......................................................................................................................................196 s 9(1) ..................................................................................................................................444 Criminal Justice (NI) Order 1996 art 4 ....................................................................................................................................477 art 9 ....................................................................................................................................476 art 10 ..................................................................................................................................476 art 13 ..................................................................................................................................476 art 14 ..................................................................................................................................476 art 15 ..................................................................................................................................476 art 33 ..................................................................................................................................194 art 33A ...............................................................................................................................475 art 33C(5) ..........................................................................................................................475 art 34 ..................................................................................................................................477 art 38 ..................................................................................................................................477 art 45 ....................................................................................................................................89 art 56(1)(b) .......................................................................................................................345 Sch 2...................................................................................................................................476 Criminal Justice (NI) Order 2003 ..................................................................................22, 442 art 18 ..................................................................................................................................443 art 28 ..................................................................................................................................197 art 29 ..................................................................................................................................198 Criminal Justice (NI) Order 2004 ........................................................................................251 Criminal Justice (NI) Order 2008 ........................................................................................138 art 13 ..................................................................................................................................479 art 13(2).............................................................................................................................479 art 14 ..................................................................................................................................479 art 18 ..................................................................................................................................479 art 22 ..................................................................................................................................479 art 23 ..................................................................................................................................202 art 28 ..................................................................................................................................479 art 68 ..........................................................................................................................202, 204 art 69 ..................................................................................................................................202 art 70 ..........................................................................................................................202, 204 Sch 1...........................................................................................................................199, 478 Sch 2...........................................................................................................................199, 478

xxxvi

Table of Legislation

Criminal Justice (No 2) (NI) Order 2004 ............................................................................210 art 3 ....................................................................................................................................196 Criminal Law Act (NI) 1967 s 3 .......................................................................................................................................466 s 3(1) ....................................................................................................................................62 s 4 .........................................................................................................................................36 s 5 .................................................................................................................................36, 456 Criminal Law (Amendment) (NI) Order 1977, art 3 ..........................................................211 Defective Premises (Landlord’s Liability) Act (NI) 2001 ....................................................588 Disability Discrimination Act 1995 (Amendment) Regulations (NI) 2004 ......................349 Disability Discrimination (Meaning of Disability) Regulations (NI) 1996 .................. 351–2 Disability Discrimination (NI) Order 2006......................................... 265, 349, 355, 370, 374 art 18 ..................................................................................................................................351 Disability Discrimination (Premises) Regulations (NI) 2007, reg 4(4) .............................370 Disability Discrimination (Service Providers and Public Authorities Carrying Out Functions) Regulations (NI) 2007....................................................367, 372 reg 4 ...................................................................................................................................369 reg 8 ...................................................................................................................................369 Disability Discrimination (Transport Vehicles) Regulations (NI) 2009 ............................373 reg 5 ...................................................................................................................................374 reg 6 ...................................................................................................................................374 reg 8 ...................................................................................................................................374 Disabled Persons (Employment) Act (NI) 1945 .................................................................350 Domestic Proceedings (NI) Order 1980 ..............................................................................439 Education (Amendment) Regulations (NI) 1998, reg 2 .....................................................508 Education and Libraries (NI) Order 1986 ...........................................................................483 art 6 ....................................................................................................................................483 art 21(2).............................................................................................................................496 art 21(4).............................................................................................................................496 art 21(5).............................................................................................................................496 art 44 ..................................................................................................................................483 art 45 ............................................................................................................................. 486–7 art 48 ..................................................................................................................................487 art 86 ..................................................................................................................................505 art 101 ................................................................................................................................511 Education and Libraries (NI) Order 2003 art 17 ..................................................................................................................................504 art 18 ..................................................................................................................................504 art 36 ..................................................................................................................................505 Education (NI) Order 1989, art 101 ....................................................................................509 Education (NI) Order 1993, art 49 ......................................................................................507 Education (NI) Order 1996 art 3 ............................................................................................................................... 498–9 art 4 ....................................................................................................................................498 art 6 ....................................................................................................................................498 art 7 ....................................................................................................................................499 art 8A .................................................................................................................................499

Table of Legislation

xxxvii

art 9 ....................................................................................................................................499 art 10 ..................................................................................................................................499 art 11 ..................................................................................................................................499 art 13 ..................................................................................................................................498 art 14 ..................................................................................................................................499 art 15 ..................................................................................................................................498 art 15(2).............................................................................................................................500 art 16 ..........................................................................................................................498, 501 art 21 ..................................................................................................................................499 Sch 2...................................................................................................................................501 Education (NI) Order 1997 art 9 ....................................................................................................................................488 art 15 ..................................................................................................................................493 art 16(1).............................................................................................................................377 Education (NI) Order 1998 art 5 ....................................................................................................................................505 art 6 ....................................................................................................................................508 art 32(1).............................................................................................................................377 art 84 ..................................................................................................................................495 Education (NI) Order 2006 art 4 ....................................................................................................................................494 art 7 ....................................................................................................................................494 art 11 ..................................................................................................................................496 art 12 ..................................................................................................................................494 art 14 ..................................................................................................................................497 art 15 ..................................................................................................................................497 art 16 ..................................................................................................................................497 art 17 ..................................................................................................................................497 art 21 ..................................................................................................................................494 art 34 ..................................................................................................................................507 Education (Pupil Reporting) Regulations (NI) 2009 ..........................................................496 Education Reform (NI) Order 1989 ........................................................................485–6, 497 art 33 ..................................................................................................................................497 art 66(2).............................................................................................................................485 art 101 ................................................................................................................................504 art 156 ................................................................................................................................486 Elected Authorities (NI) Act 1989 ........................................................................................227 Employment Act (NI) 2011 ..................................................................................................544 Employment Equality (Age) Regulations (NI) 2006...................................265, 399–402, 406 reg 3(1) ..............................................................................................................................402 reg 3(3)(a) .........................................................................................................................404 reg 6 ...................................................................................................................................405 Employment Equality (Repeal of Retirement Age Provisions) Regulations (NI) 2011 ......................................................................................................402 Employment Equality (Sex Discrimination) Regulations (NI) 2005 ........................ 299–300 Employment Equality (Sexual Orientation) Regulations (NI) 2003 ....................265, 384–5, 390–1, 393–5, 400

xxxviii

Table of Legislation

reg 3 ...................................................................................................................................391 reg 3(1) ..............................................................................................................................388 reg 5 ...................................................................................................................................393 reg 5(1)(a) and (b) ............................................................................................................394 Employment (Miscellaneous Provisions) (NI) Order 1990, art 13 ....................................336 Employment (NI) Order 2002 .............................................................................................532 Employment (NI) Order 2003 .............................................................................................543 Employment Relations (NI) Order 1999 .............................................................................518 arts 12–17 ..........................................................................................................................529 Employment Relations (NI) Order 1999 (Blacklists) Regulations (NI) 2014 ...................555 Employment Relations (NI) Order 2004 .............................................................................554 Employment Rights (NI) Order 1996 ................................ 518–19, 528, 542–3, 547, 549, 551 art 3 ....................................................................................................................................518 art 73 ..................................................................................................................................551 art 77A ...............................................................................................................................551 art 77B ...............................................................................................................................551 art 85A ...............................................................................................................................536 art 118 ........................................................................................................................... 540–1 art 124 ................................................................................................................................541 art 126 ................................................................................................................................542 art 136 ................................................................................................................................551 Pt III...........................................................................................................................520, 524 Pt IV...................................................................................................................................525 Pt V ....................................................................................................................................525 Pt XIII ................................................................................................................................545 Employment Rights (Time Off for Study or Training) (NI) Order 1998 ..........................538 Enduring Powers of Attorney (NI) Order 1987 ..................................................................425 Equal Pay Act (NI) 1970 ........................................................................... 264, 292–3, 298, 519 Equal Pay (Amendment) Regulations (NI) 1984 ................................................................293 Equality Act (Sexual Orientation) Regulations (NI) 2006........ 265, 385–7, 389–91, 393, 404 reg 3(1) ..............................................................................................................................400 reg 3(3) ..............................................................................................................................386 reg 3(3)(b) .........................................................................................................................400 reg 12 ............................................................................................................................ 387–8 reg 16 .................................................................................................................................387 Fair Employment and Treatment (NI) Order 1998 ............................. 265, 312–13, 316, 319, 327, 385, 505, 518 art 2(4)...............................................................................................................................319 art 3 ....................................................................................................................................180 art 3(2A) ............................................................................................................................314 art 3(2B) ............................................................................................................................315 art 3(4)...............................................................................................................................316 art 4 ....................................................................................................................................324 art 5 ....................................................................................................................................324 art 19 ..................................................................................................................................180 art 19(1)(a) ........................................................................................................................313 art 19(1)(b) .......................................................................................................................313

Table of Legislation

xxxix

art 20 ..................................................................................................................................313 art 20A ...............................................................................................................................313 art 21 ..................................................................................................................................313 art 22 ..................................................................................................................................313 art 23 ..................................................................................................................................313 art 24 ..................................................................................................................................313 art 25 ..................................................................................................................................313 art 26 ..................................................................................................................................313 art 27 ..................................................................................................................................318 art 27(2).............................................................................................................................318 art 28 ..................................................................................................................................316 art 29 ..................................................................................................................................317 art 30 ..................................................................................................................................317 art 31(3).............................................................................................................................317 art 31(4).............................................................................................................................317 art 31(5).............................................................................................................................318 art 32 ..................................................................................................................................313 art 36 ..................................................................................................................................316 art 38A ...............................................................................................................................321 art 39 ............................................................................................................................. 321–2 art 45 ..................................................................................................................................322 art 48 ..................................................................................................................................323 art 52 ..................................................................................................................................323 art 55 ............................................................................................................................. 323–4 art 70(1)(a) ........................................................................................................................318 art 70(3) and (4) ...............................................................................................................318 art 71 ..................................................................................................................................318 art 71(2).............................................................................................................................319 art 71A ...............................................................................................................................318 art 72 ..................................................................................................................................325 art 73 ..................................................................................................................................325 art 74 ..................................................................................................................................325 art 75 ..................................................................................................................................326 art 76 ..................................................................................................................................325 art 77 ..................................................................................................................................319 art 78 ..................................................................................................................................320 art 79 ..................................................................................................................................320 art 90 ..................................................................................................................................320 Pt IX ...................................................................................................................................321 Fair Employment and Treatment Order (Amendment) Regulations (NI) 2003 ...............312 reg 24 .................................................................................................................................321 Fair Employment (NI) Act 1976 .................................................................. 263, 311, 318, 321 Family Homes and Domestic Violence (NI) Order 1998 ...................................................439 art 11 ..................................................................................................................................439 art 20 ..........................................................................................................................439, 459 art 25 ..................................................................................................................................440 Family Law (Miscellaneous Provisions) (NI) Order 1984, art 18.......................................433

xl

Table of Legislation

Family Law (NI) Act 2001 s 1(3) ..................................................................................................................................437 s 2(1)(a) .............................................................................................................................436 s 2(1)(b).............................................................................................................................436 Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (NI) 2002 ..............................................................................................305, 523 Fixed Term (Prevention of Less Favourable Treatment) Regulations (NI) 2002 ...............535 Flags and Emblems (Display) Act (NI) 1954 .......................................................................212 Flags (NI) Order 2000...........................................................................................................212 Flexible Working (Procedural Requirements) Regulations (NI) 2003 ...............................306 Food Safety (NI) Order 1991, art 33 ......................................................................................46 Forestry Act (NI) 2010, s 31..................................................................................................183 Government of Ireland Act 1920..................................................................................263, 326 s 5(1) ..................................................................................................................................311 Health and Personal Social Services Act (NI) 2001 .............................................................452 Health and Personal Social Services (NI) Order 1972 ................................................412, 417 art 18(2).............................................................................................................................418 art 19(3).............................................................................................................................418 art 20 ..................................................................................................................................418 art 24(4).............................................................................................................................419 art 37 ..................................................................................................................................417 art 77(3).............................................................................................................................419 Sch 6...................................................................................................................................417 Health and Personal Social Services (NI) Order 1991 ........................................................452 Health and Personal Social Services (Quality, Improvement and Regulation) (NI) Order 2003 ...........................................................................................426 Health and Safety at Work (NI) Order 1978 .................................................132, 518, 539–40 art 4 ....................................................................................................................................539 Health and Safety (Consultation with Employees) Regulations (NI) 1996 ................ 539–40 Health and Safety Executive (Enforcing Authority) Regulations (NI) 1999......................526 Health and Social Care (Reform) Act (NI) 2009, s 25.........................................................426 Homosexual Offences (NI) Order 1982...............................................................383, 442, 446 Housing (Amendment) Act (NI) 2010 s 5 .......................................................................................................................................592 s 5(1) ..................................................................................................................................593 Housing (Amendment) Act (NI) 2011 ................................................................................579 s 1 .......................................................................................................................................581 s 3 .......................................................................................................................................580 Housing (NI) Order 1981 .............................................................................................153, 576 art 46 ..........................................................................................................................585, 588 art 47 ..................................................................................................................................577 Housing (NI) Order 1983 .........................................................................................570–3, 576 art 13 ..................................................................................................................................570 art 18 ..................................................................................................................................571 art 19 ..................................................................................................................................571 art 23 ..................................................................................................................................569 art 27 ..................................................................................................................................569

Table of Legislation

xli

art 30(1).............................................................................................................................570 art 30(2).............................................................................................................................570 art 32 ..................................................................................................................................570 art 32(1).............................................................................................................................571 art 34 ..........................................................................................................................571, 576 art 35 ..................................................................................................................................576 art 38 ..................................................................................................................................571 art 38A ...............................................................................................................................571 art 39 ..................................................................................................................................571 art 40 ..................................................................................................................................571 Housing (NI) Order 1988 .....................................................................................153, 567, 590 art 6 ....................................................................................................................................591 art 7A .................................................................................................................................591 art 10 ..................................................................................................................................592 art 11 ..................................................................................................................................592 art 11A ...............................................................................................................................592 art 11C ...............................................................................................................................593 art 29 ..................................................................................................................................567 Housing (NI) Order 1992 .............................................................................................575, 588 arts 75–87 ..........................................................................................................................589 art 80(2).............................................................................................................................565 Pt IV...................................................................................................................................590 Housing (NI) Order 2003 ............................................................................. 565, 569, 571, 589 art 10 ..................................................................................................................................573 art 10(3).............................................................................................................................573 art 17 ..................................................................................................................................571 Sch 3...................................................................................................................................590 Industrial Relations (NI) Order 1992 ..................................................................................518 art 3 ....................................................................................................................................550 art 21 ..................................................................................................................................557 art 21A ...............................................................................................................................557 art 26 ..................................................................................................................................552 Pt II ....................................................................................................................................553 Pt V ....................................................................................................................................553 Sch 4A ................................................................................................................................544 Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005 .......293 Information and Consultation of Employees Regulations (NI) 2005................................549 Jobseekers (NI) Order 1995 ..................................................................................................153 Juries (NI) Order 1996............................................................................................................12 art 14 ....................................................................................................................................12 art 15 ....................................................................................................................................12 Justice Act (NI) 2011 ...............................................................................................................11 Pt 6 .....................................................................................................................................204 s 37 .....................................................................................................................................210 s 37(3)(c) ...........................................................................................................................196 Sch 4...................................................................................................................................204 Justice and Security (NI) Act 2007 ............................................................. 6, 33–4, 64, 75, 205

xlii

Table of Legislation

ss 1–9 .............................................................................................................................10, 33 s 14(2) ..................................................................................................................................21 s 21 ............................................................................................................... 36–7, 67, 81, 249 ss 21–30 ...............................................................................................................................62 s 22 .......................................................................................................................................53 s 22(2) ..................................................................................................................................53 s 22(3) ..................................................................................................................................47 s 22(5) ..................................................................................................................................53 s 23 .......................................................................................................................................47 s 24 .............................................................................................................................42–4, 47 s 25 .......................................................................................................................................47 s 26 .................................................................................................................................. 44–5 s 29 ...............................................................................................................................63, 205 s 30 ...............................................................................................................................63, 205 s 31 .......................................................................................................................................63 s 32 ...............................................................................................................................63, 205 s 32(5) ..................................................................................................................................63 s 33(3) ..................................................................................................................................62 s 35 .......................................................................................................................................35 s 38 .......................................................................................................................................63 s 42 .......................................................................................................................................43 Sch 3...............................................................................................................................42, 44 para 4A ......................................................................................................................42, 44 para 6 ...............................................................................................................................48 para 7 ...............................................................................................................................48 Sch 4.....................................................................................................................................63 Justice (NI) Act 2002 .................................................................................................11–12, 468 s 10(3)(a) .............................................................................................................................50 s 53(1) ................................................................................................................................468 s 53(2) ................................................................................................................................468 s 53(3) ................................................................................................................................468 s 68 .......................................................................................................................................11 s 71 .......................................................................................................................................11 Justice (NI) Act 2004 s 6 .......................................................................................................................................109 s 13 .....................................................................................................................................140 Land Registration Act (NI) 1970 ..........................................................................................241 Landlord and Tenant Law Amendment Act (Ireland) 1860 s 41 .....................................................................................................................................584 s 42 .....................................................................................................................................584 Law Reform (Miscellaneous Provisions) (NI) Order 2005 .................................................440 Legal Aid, Advice and Assistance (NI) Order 1981 .........................................................15, 18 Life Sentences (NI) Order 2001............................................................................................136 Local Government Act (NI) 1972 s 23 .....................................................................................................................................241 s 27 .....................................................................................................................................241 Local Government Act (NI) 2014 ........................................................................................631

Table of Legislation

xliii

Magistrates’ Courts (NI) Order 1981, art 20(5) ............................................................. 49–50 art 29(1).............................................................................................................................198 Malicious Communications (NI) Order 1988.....................................................................210 Management of Health and Safety at Work Regulations (NI) 2000...........................532, 539 Marriage (NI) Order 2003 ............................................................................................433, 446 Marriages (Ireland) Act 1844, ss 6–71..................................................................................241 Maternity and Parental Leave etc Regulations (NI) 1999 ...................................................360 Pt III...................................................................................................................................537 Matrimonial Causes (NI) Order 1978 .....................................................................433, 435–6 art 27 ..................................................................................................................................436 Mental Health (Amendment) (NI) Order 2004 ..................................................................416 Mental Health (NI) Order 1986 ................................. 132, 410, 412, 414–16, 420–3, 427, 467 art 3(1)...............................................................................................................................414 art 3(2)...............................................................................................................................414 art 4(2)...............................................................................................................................415 art 7 ....................................................................................................................................415 art 7(2).......................................................................................................................415, 423 art 7(3).......................................................................................................................415, 423 art 9 ............................................................................................................................. 415–16 art 10(4).............................................................................................................................415 art 12(1).............................................................................................................................415 art 12(1)(a) and (b) ..........................................................................................................415 art 13(1)(a) ........................................................................................................................415 art 13(1)(b) .......................................................................................................................415 art 13(1)(c) ........................................................................................................................415 art 13(4).............................................................................................................................415 art 13(4)(c) ........................................................................................................................416 art 22 ..................................................................................................................................419 art 42(2)(a) ........................................................................................................................420 art 43 ..................................................................................................................................420 art 44 ..................................................................................................................................420 art 47 ..................................................................................................................................420 art 50 ..................................................................................................................................420 art 53(1).............................................................................................................................131 art 62 ............................................................................................................................. 423–4 art 63 ............................................................................................................................. 423–5 art 63(2)(b) .......................................................................................................................423 art 64 ............................................................................................................................. 423–5 art 64(1)(b) .......................................................................................................................424 art 64(3)(a) ........................................................................................................................424 art 64(3)(b) .......................................................................................................................424 art 66 ............................................................................................................................. 423–4 art 68 ..................................................................................................................................424 art 68(2).............................................................................................................................425 art 69 ..................................................................................................................................423 art 77(1).............................................................................................................................416 art 86 ..................................................................................................................................427

xliv

Table of Legislation

art 86(6).............................................................................................................................427 art 87 ..................................................................................................................................427 art 97(1).............................................................................................................................426 art 101(2)...........................................................................................................................426 art 111 ................................................................................................................................412 art 116 ................................................................................................................................425 art 116(3)...........................................................................................................................425 art 129 ................................................................................................................................421 art 129(1)...........................................................................................................................422 art 129(2)...........................................................................................................................421 art 129(4)...........................................................................................................................421 art 129(5)...........................................................................................................................422 art 129(7)...........................................................................................................................421 art 130 ................................................................................................................................421 Pt IV.......................................................................................................................415, 422–3 Pt VIII ................................................................................................................................426 Mental Health Review Tribunal (NI) Rules 1986 ................................................................416 Northern Ireland Act 1998 .......................................... 6, 95, 184, 264–5, 267, 269–70, 272–3, 276, 283, 299, 326–7, 383, 629, 638, 644 s 28 .....................................................................................................................................205 s 50 .....................................................................................................................................215 s 74 .....................................................................................................................................331 s 75 ................................................ 263, 265, 270–85, 330, 335, 345, 373, 383, 399, 406, 452 s 75(1) ............................................................................................ 272, 274–5, 282, 326, 383 s 75(2) .................................................................................................... 272, 274–5, 326, 383 s 75(3)(d)...........................................................................................................................272 s 75(4)(A) ..........................................................................................................................273 s 76 .............................................................................................................................265, 284 s 76(1) ................................................................................................................................326 s 87 .....................................................................................................................................596 Sch 3, para 10 ....................................................................................................................183 Sch 8, para 5 ......................................................................................................................282 Sch 9...............................................................................................................275–7, 280, 283 paras 10 and 11 .............................................................................................................284 Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 .............................................................................................120, 190 Sch 4...................................................................................................................................119 Northern Ireland Constitution Act 1973 .............................................................................263 s 19(1) ................................................................................................................................326 Northern Ireland (Emergency Provisions) Act 1998, s 3 ......................................................56 Northern Ireland (Sentences) Act 1998 ...............................................................................138 Ombudsman (NI) Order 1996 ...............................................................................................23 Part-time Workers (Prevention of Less Favourable Treatment) Regulations (NI) 2000 ......................................................................................................523 Pensions (No 2) Act (NI) 2008 ...................................................................................... 529–30 Planning Act (NI) 2011.........................................................................................................631 Planning (Environmental Impact Assessment) Regulations (NI) 2012.............................633

Table of Legislation

xlv

Planning (NI) Order 1991 art 11(1).............................................................................................................................632 art 11(2).............................................................................................................................632 art 11(3).............................................................................................................................632 art 12 ..................................................................................................................................632 art 31 ..................................................................................................................................635 art 31(2).............................................................................................................................635 art 31(3).............................................................................................................................636 art 42 ..................................................................................................................................632 Planning (Use Classes) Order (NI) 2004 .............................................................................632 Police and Criminal Evidence (Amendment) (NI) Order 2007 .........................31, 48–9, 251 art 15 ....................................................................................................................................51 Sch 1.....................................................................................................................................49 Sch 2.....................................................................................................................................49 Police and Criminal Evidence (Application to Police Ombudsman) Order (NI) 2000 ......96 Sch 2...................................................................................................................................108 Police and Criminal Evidence (NI) Order 1989 ................................. 31–3, 35, 38, 45, 52, 56, 68–9, 74–5, 77, 80, 95, 225, 248, 251, 457–8, 468, 470 art 3 ........................................................................................................................38, 43, 249 art 4(7).................................................................................................................................43 art 5 ......................................................................................................................................40 art 5(7).................................................................................................................................39 art 6 ................................................................................................................................. 43–4 arts 10–25 ............................................................................................................................45 art 10(1)...............................................................................................................................45 art 10(3)...............................................................................................................................45 art 11 ....................................................................................................................................45 art 12 ....................................................................................................................................46 art 17(5)...............................................................................................................................45 art 18(3)...............................................................................................................................45 art 18(4)...............................................................................................................................45 art 19 ....................................................................................................................................46 art 20 ....................................................................................................................................46 art 21 ....................................................................................................................................46 art 26 ............................................................................................................................... 48–9 arts 26–34 ............................................................................................................................48 art 26A .................................................................................................................................51 art 30(3)...............................................................................................................................50 art 30(5)...............................................................................................................................50 art 31 ....................................................................................................................................53 art 32 ....................................................................................................................................54 art 32(13).............................................................................................................................54 art 33 ....................................................................................................................................54 art 35(2)...............................................................................................................................55 art 38(2).............................................................................................................................470 art 39(1)(a) ........................................................................................................................470

xlvi

Table of Legislation

art 39(1)(b) .......................................................................................................................470 art 41(1)(b) .........................................................................................................................55 art 41(3)...............................................................................................................................55 art 41A .................................................................................................................................55 art 42(1)...............................................................................................................................55 art 43(1)...............................................................................................................................55 art 44 ....................................................................................................................................55 art 45 ....................................................................................................................................55 art 46A .................................................................................................................................55 art 55 ............................................................................................................................54, 247 art 56 ....................................................................................................................................54 art 57 ..............................................................................................................................55, 77 art 57(5)...............................................................................................................................55 art 57(5A) ............................................................................................................................55 art 58 ....................................................................................................................................55 art 58(8)...............................................................................................................................56 art 58(8A) ............................................................................................................................56 art 58(9)...............................................................................................................................56 art 59 ............................................................................................................................... 76–7 art 60 ..............................................................................................................................31, 72 art 60A ...........................................................................................................................31, 72 art 61 ....................................................................................................................................59 art 62 ....................................................................................................................................60 art 62(10).............................................................................................................................60 art 63 ....................................................................................................................................60 arts 63B–63R .......................................................................................................................61 art 63D .................................................................................................................................61 art 63G .................................................................................................................................61 art 63M ................................................................................................................................61 art 63R .................................................................................................................................61 art 64A .................................................................................................................................59 art 65 ..............................................................................................................................31, 71 art 65(a)(iii) ........................................................................................................................49 art 66 ....................................................................................................................................32 art 66(7)...............................................................................................................................74 art 66(10).............................................................................................................................74 art 70(1)...............................................................................................................................68 art 74 ..................................................................................................................68–70, 73, 75 art 74(8)...............................................................................................................................69 art 76 ..........................................................................................................................47, 73–4 art 76(2)(a) ..........................................................................................................................69 art 78 ....................................................................................................................................91 art 79 ....................................................................................................................................86 art 79(8)...............................................................................................................................85 art 80A .................................................................................................................................85 art 81 ....................................................................................................................................85 art 88 ..............................................................................................................................50, 62

Table of Legislation

xlvii

Pt 6 .....................................................................................................................................251 Sch 1.....................................................................................................................................45 para 2(c) ..........................................................................................................................45 Sch 2.....................................................................................................................................49 Police (NI) Act 1998........................................................................................................... 94–5 s 53 .....................................................................................................................................106 s 55(1) ................................................................................................................................109 s 55(2) ................................................................................................................................109 s 55(6)(b)...........................................................................................................................109 s 60A ..................................................................................................................................115 s 61(4) ................................................................................................................................116 s 62 .....................................................................................................................................116 s 66 .......................................................................................................................................36 s 66(1) ........................................................................................................................194, 204 Police (NI) Act 2000.................................................................................... 94–5, 107, 272, 319 s 3 .......................................................................................................................................202 s 6 .......................................................................................................................................202 s 51(5) ................................................................................................................................180 s 58A ..................................................................................................................................112 s 73 .......................................................................................................................................56 Police (NI) Act 2003..........................................................................................................95, 98 s 13 .....................................................................................................................................115 Policing (Miscellaneous Provisions) (NI) Order 2007..........................................................96 art 12 ..................................................................................................................................205 Prevention of Incitement to Hatred Act (NI) 1970 .............................................................210 Primary Schools: General Regulations (NI) 1973 ...............................................................182 Prison Act (NI) 1953 .............................................................................................................121 s 13(1)(c) ...........................................................................................................................136 Prison and Young Offenders Centre (Amendment) Rules (NI) 2009, r 68A .....................448 Prison and Young Offenders Centre Rules (NI) 1995, ................................................120, 448 r 2 .......................................................................................................................................121 r 16 .....................................................................................................................................132 r 16(9) ................................................................................................................................133 r 18 .....................................................................................................................................130 r 23 .....................................................................................................................................120 r 27(2) ........................................................................................................................... 136–7 r 27(4) ................................................................................................................................137 r 30 .....................................................................................................................................478 r 32 ................................................................................................................................ 133–4 r 32(2) ................................................................................................................................134 r 32(4) ................................................................................................................................134 rr 35–42 .............................................................................................................................128 r 36 .....................................................................................................................................136 r 36(4) ................................................................................................................................136 r 38(23A) ...........................................................................................................................131 r 39 .....................................................................................................................................136 r 42 .....................................................................................................................................136

xlviii

Table of Legislation

r 44 .....................................................................................................................................136 r 47 .....................................................................................................................................134 r 51(8) ................................................................................................................................131 r 52(1) ................................................................................................................................130 r 54 .....................................................................................................................................128 r 54(1) ................................................................................................................................130 r 57 .....................................................................................................................................131 r 66 .....................................................................................................................................128 r 67(3) ................................................................................................................................127 r 67(4) ................................................................................................................................127 r 68A ..................................................................................................................................128 r 71(1) ................................................................................................................................126 r 71(2) ................................................................................................................................126 r 72(4) ................................................................................................................................126 r 72(5) ................................................................................................................................126 r 73 .....................................................................................................................................133 r 74 .....................................................................................................................................123 r 75 .....................................................................................................................................123 r 76 .....................................................................................................................................123 r 77 .....................................................................................................................................123 r 79 ................................................................................................................................ 123–4 r 79K ..................................................................................................................................124 r 79M .................................................................................................................................124 r 81(2) ................................................................................................................................130 r 82(1) ................................................................................................................................130 r 82(3) ................................................................................................................................130 r 88(1) ................................................................................................................................131 r 88A ..................................................................................................................................134 r 91(1) ................................................................................................................................134 r 91(2) ................................................................................................................................134 r 92(1) ................................................................................................................................134 r 109A ................................................................................................................................135 r 109D ................................................................................................................................135 Private Tenancies (NI) Order 2006 ..................................................................579, 585–6, 589 art 4 ....................................................................................................................................581 art 5 ....................................................................................................................................580 arts 7–12 ............................................................................................................................582 art 13 ..................................................................................................................................582 art 18 ..................................................................................................................................588 art 19 ..................................................................................................................................588 art 60 ............................................................................................................................. 580–1 art 61 ..................................................................................................................................582 Protection from Harassment (NI) Order 1997 ...................................................................199 art 2 ....................................................................................................................................209 art 6 ....................................................................................................................................209 Protection of Children (NI) Order 1978 .....................................................................222, 445 Protection of the Person and Property Act (NI) 1969, s 1 ..................................................209

Table of Legislation

xlix

PSNI (Appeals) (Amendment) Order 2004...........................................................................96 PSNI (Conduct etc) (Amendment) Order 2004 ...................................................................96 PSNI (Conduct) Regulations 2003.........................................................................................96 Public Health (Ireland) Act 1878 .................................................................................576, 587 Public Interest Disclosure (NI) Order 1998 ........................................................................528 Public Interest Disclosure (Prescribed Persons) Order (NI) 1999 .....................................529 Public Order (NI) Order 1987.......................................................... 180–2, 194, 210, 212, 558 art 2(2)...............................................................................................................................180 art 4 ....................................................................................................................................195 art 4(2)...............................................................................................................................190 art 5 ............................................................................................................................193, 195 art 5(1)...............................................................................................................................190 art 5(1ZA) .........................................................................................................................191 art 5(3)...............................................................................................................................191 art 5(5)...............................................................................................................................195 art 7(2)...............................................................................................................................197 art 9 ........................................................................................................................196–7, 210 art 10 ..................................................................................................................................210 art 11 ..................................................................................................................................210 art 12 ..................................................................................................................................210 art 13 ..................................................................................................................................210 art 18 ..................................................................................................................................199 art 18(1).............................................................................................................................204 art 18(1)(a) ........................................................................................................................197 art 18(1)(b) .......................................................................................................................197 art 18(3).............................................................................................................................197 art 19 ..........................................................................................................................199, 211 art 19(1)(a) ........................................................................................................................196 art 20 ..................................................................................................................................200 art 21 ..................................................................................................................................201 art 23A .........................................................................................................................39, 206 art 23B .........................................................................................................................39, 205 Public Processions (Amendment) (NI) Order 2005 ...........................................................184 Public Processions (NI) Act 1998 ............................................................. 180, 182–5, 190, 194 s 2(1)(a) .............................................................................................................................184 s 2(1)(b).............................................................................................................................184 s 2(1)(c) .............................................................................................................................184 s 2(1)(d).............................................................................................................................184 s 2(2) ..................................................................................................................................184 s 5 .......................................................................................................................................191 s 6 .......................................................................................................................................184 s 6(2)(b).............................................................................................................................185 s 6(4)(g) .............................................................................................................................185 s 6(7) ..................................................................................................................................194 s 7 .......................................................................................................................................184 s 7(2)(b).............................................................................................................................185 s 7(4)(f) .............................................................................................................................185

l

Table of Legislation

s 7(6) ..................................................................................................................................194 s 8 .......................................................................................................................................185 s 8(2) ..................................................................................................................................191 s 8(6) ............................................................................................................................. 191–2 s 8(6)(a)–(c) ......................................................................................................................192 s 8(6)(a)–(d)......................................................................................................................191 s 8(6)(c) .............................................................................................................................192 s 8(6)(d)–(e)......................................................................................................................191 s 8(7) ..................................................................................................................................195 s 9 .......................................................................................................................................191 s 9A(6) ...............................................................................................................................191 s 9A(6)(a)–(c) ...................................................................................................................192 s 9A(6)(d) ..........................................................................................................................191 s 9A(7) and (8) ..................................................................................................................195 s 9B.....................................................................................................................................191 s 11 .....................................................................................................................................193 s 11(8)–(9) .........................................................................................................................195 s 11A(7)–(8) ......................................................................................................................195 s 13 .............................................................................................................................201, 204 s 13(1)(b)...........................................................................................................................194 s 14 .....................................................................................................................................196 s 17(1) ................................................................................................................................181 Sch 1...................................................................................................................................183 Public Records Act (NI) 1923 ...............................................................................................238 Public Service Vehicles Accessibility Regulations (NI) 2003 ...............................................374 Race Relations (NI) Order 1997 ........................................................ 264, 275, 329–31, 336–7, 344, 385–7, 390–1, 505 art 3 ....................................................................................................................................392 art 3(1)(i) ..........................................................................................................................392 art 3(1A) ............................................................................................................................334 art 3(3)...............................................................................................................................337 art 4 ....................................................................................................................................337 art 5(1)...............................................................................................................................335 art 5(2)(a) ..........................................................................................................................336 art 7A .................................................................................................................................339 art 8 ....................................................................................................................................339 art 13 ..................................................................................................................................343 art 18 ..................................................................................................................................341 art 19 ..................................................................................................................................341 art 20 ..........................................................................................................................341, 345 art 20A .......................................................................................................................342, 388 art 21 ..................................................................................................................................341 art 25 ..................................................................................................................................343 art 32(1).............................................................................................................................340 art 32(5).............................................................................................................................340 art 33 ..................................................................................................................................333 art 35 ..................................................................................................................................340

Table of Legislation

li

art 36A ...............................................................................................................................340 art 37 ..................................................................................................................................340 art 38 ..................................................................................................................................344 art 40(1).............................................................................................................................344 art 40(2).............................................................................................................................344 art 41 ..................................................................................................................................344 art 42(2)(b) .......................................................................................................................275 art 52B ...............................................................................................................................330 art 54(5).............................................................................................................................341 art 54A .......................................................................................................................330, 343 art 67 ..................................................................................................................................345 art 67(b) ............................................................................................................................275 Race Relations Order (Amendment) Regulations (NI) 2003 .............................................342 Race Relations Regulations (NI) 2003 .................................................................................330 Rail Accessibility Regulations (NI) 2001 ..............................................................................374 Rates (Capital Values, etc) (NI) Order 2006 ........................................................................564 Registration of Deeds Act (NI) 1970....................................................................................241 Registration of Marriages (Ireland) Act 1863, s 19 .............................................................241 Rehabilitation of Offenders (Exceptions) (Amendment) Order (NI) 2012 ......................141 Rehabilitation of Offenders (Exceptions) Order (NI) 1979, as amended ..................... 141–2 Rehabilitation of Offenders (NI) Order 1978......................................................140, 142, 168 Rent Book Regulations (NI) 2004 ........................................................................................580 Rent (NI) Order 1978 .........................................................................................13, 579, 582–3 art 38 ..................................................................................................................................580 Reporting of Injuries, Diseases, and Dangerous Occurrences Regulations (NI) 1997 ......................................................................................................539 Review of Children’s Cases Regulations (NI) 1996, reg 3 ...................................................464 Road Traffic (NI) Order 1981.........................................................................................60, 375 art 177 ..................................................................................................................................81 art 180 ......................................................................................................................36, 43, 81 Roads (NI) Order 1993 .........................................................................................................182 RUC (Appeals) Regulations 2000 ...........................................................................................96 RUC (Complaints etc) Regulations 2001...............................................................................96 Reg 20 ................................................................................................................................116 RUC (Complaints) (Informal Resolution) Regulations 2000 ..............................................96 RUC (Conduct) Regulations 2000 .................................................................................96, 110 RUC (Conduct) (Senior Officer) Regulations 2000 ..............................................................96 Pt II ....................................................................................................................................110 RUC (Unsatisfactory Performance) Regulations 2000 .........................................................96 Rules of the Supreme Court (NI) 1980, Order 24 ...............................................................239 Safeguarding Vulnerable Groups (NI) Order 2007 .................................................141, 455–6 Sch 2...................................................................................................................................141 Safety Representatives and Safety Committee Regulations (NI) 1979 ...............................539 School Admissions (Exceptional Circumstances) Regulations (NI) 2010 .........................493 reg 5 ...................................................................................................................................493 Secondary Schools (Grant Conditions) Regulations (NI) 1973 .........................................182 SENDO: see Special Educational Needs and Disability (NI) Order

lii

Table of Legislation

Service Provision Change (Protection of Employment) Regulations (NI) 2006 ..............546 Sex Discrimination (Amendment) (NI) Order 1988 ..........................................................308 Sex Discrimination (Amendment of Legislation) Regulations (NI) 2008 .................299, 303 Sex Discrimination (Gender Reassignment) Regulations (NI) 1999 .........................299, 447 Sex Discrimination (NI) Order 1976 ....................... 264, 292–3, 299–301, 303–4, 307–8, 505 art 5A .................................................................................................................................304 art 6A .................................................................................................................................303 art 8 ....................................................................................................................................302 art 8(2B) ............................................................................................................................303 art 8(2C) ............................................................................................................................304 art 10 ..................................................................................................................................303 art 17 ..................................................................................................................................303 art 22A ...............................................................................................................................301 arts 24–29 ..........................................................................................................................301 art 30 ..................................................................................................................................302 art 40 ..................................................................................................................................301 art 48 ..................................................................................................................................303 art 49 ..................................................................................................................................303 art 52 ..................................................................................................................................308 Pt III...................................................................................................................................301 Sex Discrimination (NI) Order 1988 ...........................................................................303, 307 Sexual Offences (NI) Order 1978 .........................................................................................442 Sexual Offences (NI) Order 2008 .............................................................................442–3, 446 art 5 ....................................................................................................................................443 art 6 ....................................................................................................................................443 arts 12–15 ..........................................................................................................................442 arts 16–21 ..........................................................................................................................442 art 32 ..................................................................................................................................444 art 33 ..................................................................................................................................444 arts 60–64 ..........................................................................................................................444 art 64A ...............................................................................................................................444 art 66 ..................................................................................................................................445 art 70 ..................................................................................................................................444 art 71 ..................................................................................................................................444 Shops (Sunday Trading etc) (NI) Order 1997 .....................................................................527 Social Security (Claims and Payments) Regulations (NI) 1987, regs 33–34..............425, 575 Social Security Contribution and Benefits (NI) Act 1992 ..................................................153 Special Educational Needs and Disability (NI) Order 2005 ...........349–50, 376, 378–81, 498 arts 13–26 ..........................................................................................................................376 art 14(5).............................................................................................................................376 art 15 ..................................................................................................................................376 art 16 ..................................................................................................................................377 art 16(7).............................................................................................................................377 art 19 ..................................................................................................................................377 art 20 ..................................................................................................................................377 art 29 ..................................................................................................................................378 art 29A ...............................................................................................................................379

Table of Legislation

liii

art 30 ..................................................................................................................................379 art 30A .......................................................................................................................376, 379 art 30B ...............................................................................................................................376 art 30C ...............................................................................................................................376 arts 34–39 ..........................................................................................................................380 art 35 ..................................................................................................................................380 art 43 ..........................................................................................................................376, 379 art 44 ..................................................................................................................................350 art 45 ..................................................................................................................................350 art 48 ..................................................................................................................................376 Special Educational Needs and Disability (General Qualifications Bodies) (Relevant Qualifications, Reasonable Steps and Physical Features) (Amendment) Regulations (NI) 2008 .............................................................................380 Tenancy Deposit Schemes Regulations (NI) 2012...............................................................586 Tenancy Terms Regulations (NI) 2007............................................................................ 580–1 Trade Union and Labour Relations (NI) Order 1995 .........................................................179 art 29 ..................................................................................................................................554 arts 38–41 ..........................................................................................................................555 art 97 ..................................................................................................................................556 art 98 ..................................................................................................................................558 art 104 ................................................................................................................................556 art 118 ................................................................................................................................556 Pt II ....................................................................................................................................553 Pt III...................................................................................................................................554 Pt IV...................................................................................................................................554 Pt V ....................................................................................................................................555 Pt VIII ................................................................................................................................556 Sch 1A ........................................................................................................................... 551–2 Treatment of Offenders Act (NI) 1968 s 5 .......................................................................................................................................478 s 18 .....................................................................................................................................478 Unsolicited Goods and Services (NI) Order 1976, art 7 .....................................................222 Victims and Survivors (NI) Order 2006 ................................................................................26 Welfare Reform Act (NI) 2007 .............................................................................................153 Working Time Regulations (NI) 1998 .............................................................525–7, 543, 549 Scotland Council Tax Reduction (Scotland) Regulations 2012 .........................................................153 Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012 ...................153 Housing (Scotland) Act 1987 ...............................................................................................153 Marriage and Civil Partnership (Scotland) Act 2014 ..................................................395, 433 United Kingdom/Great Britain/England and Wales Abortion Act 1967 .................................................................................................................441 s 1 .......................................................................................................................................442 Administration of Justice Act 1970 s 31 .....................................................................................................................................239

liv

Table of Legislation

s 32 .....................................................................................................................................239 Anti-social Behaviour Act 2003 ............................................................................................182 Anti-terrorism, Crime and Security Act 2001 ................................................... 33, 37, 56, 230 s 93 .......................................................................................................................................59 s 95 .....................................................................................................................................206 s 96 .....................................................................................................................................205 s 117 .....................................................................................................................................81 Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2011 .....................................................................................................434 Asylum and Immigration (Treatment of Claimants etc) Act 2004 ....................................445 s 4 .......................................................................................................................................445 Bill of Rights 1689 .........................................................................................................215, 217 Borders, Citizenship and Immigration Act 2009, s 55 ................................................161, 447 British Nationality Act 1981 .........................................................................................148, 168 Building Regulations (NI) 2012 ...........................................................................................371 Children Act 1989 ............................................................................................................ 451–2 Children and Families Act 2014 ...........................................................................................305 s 131 ...................................................................................................................................306 Civil Partnership Act 2004 ............................................................................ 384, 395, 432, 446 s 6(1)(b).............................................................................................................................396 s 6(2) ..................................................................................................................................396 Communications Act 2003 ...................................................................................207, 220, 222 s 127 ...........................................................................................................................210, 222 s 198 ...................................................................................................................................218 s 319 ...................................................................................................................................218 s 321 ...................................................................................................................................228 s 336(5) ..............................................................................................................................219 Contempt of Court Act 1981........................................................................................... 223–5 s 4(1) ..................................................................................................................................223 s 8 .......................................................................................................................................224 s 10 .......................................................................................................................................85 Coroners and Justice Act 2009 Pt 7 .....................................................................................................................................229 s 54 .....................................................................................................................................440 s 54(1) ................................................................................................................................440 s 55(4) ................................................................................................................................440 s 55(6) ................................................................................................................................440 s 56 .....................................................................................................................................440 s 62 .....................................................................................................................................222 s 73 .............................................................................................................................216, 221 Corporate Manslaughter and Corporate Homicide Act 2007, s 2(1)(d) ...........................132 Counter-Terrorism Act 2008 ......................................................................................33, 48, 71 ss 22–27 ...............................................................................................................................33 s 24 .......................................................................................................................................80 Crime and Security Act 2010 ................................................................................................252 Crime (Sentences) Act 1997 .................................................................................................140 Criminal Justice Act 1991, s 95(1)(b)...................................................................................345

Table of Legislation

lv

Criminal Justice Act 2003 .....................................................................................................251 s 306 .....................................................................................................................................58 Criminal Justice Act 2009, s 117 .............................................................................................76 Criminal Justice and Immigration Act 2008........................................................................222 s 63 .............................................................................................................................221, 445 s 70 .....................................................................................................................................445 Criminal Justice and Public Order Act 1994........................................................................446 ss 34–38 ...............................................................................................................................35 Criminal Law Act 1977 .........................................................................................................248 Criminal Law Amendment Act 1885 ...................................................................................442 Data Protection Act 1998 ..................................................................................240, 244–6, 253 s 7 .......................................................................................................................................240 Defamation Act 1996 s 1 .......................................................................................................................................216 s 2 .......................................................................................................................................214 Defamation Act 2013 ............................................................................................................214 s 4 .......................................................................................................................................214 Digital Economy Act 2010 ............................................................................................218, 221 s 1 .......................................................................................................................................220 Disability Discrimination Act 1995........................................... 264, 305, 342, 349–54, 357–9, 362–5, 367, 369–72, 374–6, 378, 400, 502 Pt 2 .....................................................................................................................355, 363, 379 Pt 3 ............................................................................................. 363, 365–6, 372–5, 378, 381 s 1 .......................................................................................................................................351 s 3A ....................................................................................................................................357 ss 3A–18 .............................................................................................................................354 s 3A(5) ...............................................................................................................................356 s 3A(5A) ............................................................................................................................356 s 3B(1) ...............................................................................................................................362 s 3B(2) ...............................................................................................................................362 s 4 .......................................................................................................................................356 s 4A ....................................................................................................................................359 s 4A(3)(b) ..........................................................................................................................359 s 4B.....................................................................................................................................355 s 4G ....................................................................................................................................359 s 13 .....................................................................................................................................363 s 14A ..................................................................................................................................364 s 14C ..................................................................................................................................364 s 14D ..................................................................................................................................364 ss 15A–15C ........................................................................................................................372 s 16 .....................................................................................................................................371 s 16A ..................................................................................................................................355 s 16B...................................................................................................................................355 s 16C ..................................................................................................................................363 s 17A ..................................................................................................................................364 s 17A(2)(c) ........................................................................................................................364 s 18B...................................................................................................................................359

lvi

Table of Legislation

s 18B(2) .............................................................................................................................361 s 18C ..................................................................................................................................355 s 18D ..................................................................................................................................360 ss 19–21 .............................................................................................................................365 s 19(1) ................................................................................................................................368 s 19(1)(d)...........................................................................................................................369 s 19(2) ................................................................................................................................366 s 19(3) ................................................................................................................................365 s 20 ................................................................................................................................ 367–9 s 20(1) ................................................................................................................................366 s 20(5) ................................................................................................................................368 s 21 .....................................................................................................................................367 s 21(6) ................................................................................................................................368 s 21B...................................................................................................................................372 s 21D ..................................................................................................................................372 s 21D(5) .............................................................................................................................372 s 21ZA ................................................................................................................................373 s 22 .....................................................................................................................................370 s 23 .....................................................................................................................................370 s 24 .....................................................................................................................................370 s 24(3) ................................................................................................................................371 s 24C ..................................................................................................................................370 s 24D ..................................................................................................................................370 s 24E...................................................................................................................................370 s 24F ...................................................................................................................................371 s 27 .....................................................................................................................................371 s 36 .....................................................................................................................................375 s 37 .....................................................................................................................................375 s 46 .....................................................................................................................................374 s 47 .....................................................................................................................................374 s 49A ..................................................................................................................................373 s 55 .....................................................................................................................................363 s 56 .....................................................................................................................................364 s 57 .....................................................................................................................................350 s 58 .....................................................................................................................................350 s 59 .....................................................................................................................................350 s 64 .....................................................................................................................................355 Sch 1.......................................................................................................................350, 352–3 Sch 3A ................................................................................................................................364 Disposal of Documents Order (NI), 1925 ...........................................................................238 Employment Equality (Age) Regulations 2006 ...................................................................400 Employment Equality (Sexual Orientation) Regulations 2003 ..........................................384 Enterprise and Regulatory Reform Act 2013 .......................................................................395 Environmental Information Regulations 2004 .....................................................629–31, 640 Equality Act 2006 ..................................................................................................................385 s 82 .....................................................................................................................................385 Equality Act 2010 ..............................................................267, 291, 329, 331, 349, 357, 384–5, 387–8, 394–5, 399, 401, 406

Table of Legislation

lvii

s 13(1) ................................................................................................................................390 s 26(1) ........................................................................................................................394, 406 s 29 .....................................................................................................................................343 s 29(6) ................................................................................................................................387 s 149 ...........................................................................................................................272, 284 s 192 ...................................................................................................................................344 s 202 ...................................................................................................................................396 European Communities Act 1972 ........................................................................................400 s 2(2) ..................................................................................................................................384 Forced Marriages (Civil Protections) Act 2007 ...................................................................433 Foster Placement (Children) Regulations 1996...................................................................465 reg 7 ...................................................................................................................................465 Freedom of Information Act 2000 ............................................................. 95, 234, 237–8, 631 s 3(2) ..................................................................................................................................235 s 19 .....................................................................................................................................236 s 19(1) ................................................................................................................................236 Human Fertilisation and Embryology Act 2008 .................................................................447 Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004 ...............................................................................................................447 Human Rights Act 1998 ......................................................5–6, 17, 19, 21, 74, 77, 81, 95, 105, 120–1, 180, 199, 208, 211–12, 217, 243–5, 248, 254, 256, 259, 285, 327, 329, 431, 434, 451–2, 629, 638, 643–4 Marriage (Same Sex Couples) Act 2013 .......................................................................395, 433 Mental Incapacity Act 2005, Sch 1A .....................................................................................419 National Minimum Wage Act 1998..............................................................................524, 543 National Minimum Wage Regulations 1999 .......................................................................524 Offences against the Person Act 1861 ....................................................................22, 209, 442 s 57 .....................................................................................................................................433 s 58 .....................................................................................................................................441 s 59 .....................................................................................................................................441 Policing and Crime Act 2009 s 15 .....................................................................................................................................444 s 20 .....................................................................................................................................444 Protection of Freedoms Act 2012 ..................................................42, 44, 58, 61, 141, 250, 455 Sexual Offences Act 2003 Pt 2 .....................................................................................................................................443 s 47 .....................................................................................................................................444 ss 52–63A ...........................................................................................................................444 ss 57–59 .............................................................................................................................445 s 58 .....................................................................................................................................445 Sexual Offences (Amendment) Act 2000 .............................................................................446 Tax Credits Act 2002 .....................................................................................................153, 543 Terrorism Act 2000 s 1 .........................................................................................................................................34 ss 11–12 .............................................................................................................................180 s 12 .....................................................................................................................................211 s 13 .............................................................................................................................201, 211

lviii

Table of Legislation

s 19 .....................................................................................................................................225 s 38B.....................................................................................................................................37 s 39 .....................................................................................................................................225 s 40 .......................................................................................................................................52 s 41 ........................................................................................................... 33–4, 41, 52, 56, 76 s 41(3) ..................................................................................................................................56 s 42 .................................................................................................................................48, 53 s 43 .................................................................................................................................33, 41 s 43(2) ..................................................................................................................................41 s 43A ..............................................................................................................................33, 44 s 44 ...........................................................................................................................41–2, 250 ss 44–47 ...............................................................................................................................42 s 47A ........................................................................................................................33, 42, 44 s 53 .......................................................................................................................................37 s 57 .......................................................................................................................................48 s 58 .......................................................................................................................................48 s 58A ............................................................................................................................48, 212 ss 59–61 .............................................................................................................................209 s 76 .......................................................................................................................................75 s 89 .......................................................................................................................................81 s 102 .....................................................................................................................................63 s 114(2) ................................................................................................................................62 Sch 5...................................................................................................................................225 Sch 6B ..................................................................................................................................33 Sch 7.....................................................................................................................................37 Sch 8.....................................................................................................................................33 paras 3 and 4 ...............................................................................................................76 paras 6–15 ...................................................................................................................57 paras 6 and 7 ...............................................................................................................77 para 8 ...........................................................................................................................57 para 8(2)......................................................................................................................57 para 10(2) and (4) ......................................................................................................59 paras 21–28 .................................................................................................................57 paras 29–37 .................................................................................................................58 Sch 12...................................................................................................................................63 Terrorism Act 2000 (Remedial Order) 2011 ........................................................................250 Terrorism Act 2006............................................................................................................. 32–4 s 1(3) ..................................................................................................................................211 s 23(7) ..................................................................................................................................58 s 36 .......................................................................................................................................59 Terrorism Prevention and Investigation Measures Act 2011 ................................................33 Sch 1, paras 7 and 8...........................................................................................................227 Terrorism (UN Measures) Order 2006 ................................................................................225 Transfer of Undertakings (Protection of Employment) Regulations 2006................... 546–9 reg 7(1)(b) .........................................................................................................................549 Transnational Information and Consultation of Employees Regulations 1999 ................549 Treason Felony Act 1848 .......................................................................................................211

Table of Legislation

lix

Tribunals, Courts and Enforcement Act 2007 .....................................................................172 UK Borders Act 2007 ............................................................................................................170 Unfair Terms in Consumer Contracts Regulations 1999 ....................................................584 Vagrancy Act 1898 .................................................................................................................442 Video Recordings Act 1984 ...........................................................................................220, 445 Video Recordings Act 2010 ...................................................................................................445 Violence, Crime and Victims Act 2004 ................................................................................440 Welfare Reform Act 2007 ......................................................................................................153 Welfare Reform Act 2012 ...................................................... 153, 595–6, 598, 608, 610, 620–1 Youth and Criminal Evidence Act 1999, Sch 2 ....................................................................225 Other Countries Canada Bill of Rights 1960 .....................................................................................................................4 France Civil Code ..............................................................................................................................390 Constitution, Preamble .............................................................................................................5 Declaration of the Rights of Man and of the Citizen 1789 .....................................................5 Germany Basic Law ...................................................................................................................................5 India Constitution 1950 .....................................................................................................................4 Ireland Constitution, Arts 40–44 ..........................................................................................................4 Defamation Act 2009 ............................................................................................................222 New Zealand Bill of Rights 1990 .....................................................................................................................4 South Africa Constitution ..............................................................................................................................4 United States Constitution ..............................................................................................................................5

1 Introduction BRICE DICKSON AND BRIAN GORMALLY

In all democracies the law is part and parcel of a wider notion called ‘the rule of law’. By this is meant that no-one, whether an individual, a company, a private body or an organ of the government, can be above the law. It means as well that the law must apply to everyone equally, without any unfair discrimination. Hand in hand with this principle runs the understanding that all individuals have certain basic rights which the state must not infringe. It is the availability of those rights to people living in Northern Ireland which forms the subject matter of this book.

The Development of International Human Rights Law After the end of the Second World War, which brought to light horrific violations of human rights in Germany and elsewhere, nations around the world were determined to take steps to guarantee protection of human rights in international and national law. The first concrete manifestation of this was the American Declaration of the Rights and Duties of Man, drawn up in 1948 not by the US government but by the Organization of American States which covers the whole of North, Central and South America. This was followed in the same year by the Universal Declaration of Human Rights, produced under the auspices of the newly created United Nations (UN). The Declaration was proclaimed on 10 December, which is now celebrated worldwide as International Human Rights Day. Neither of these Declarations was a binding legal treaty; they were merely statements of best practice, or so-called ‘soft law’. The first important human rights treaty was agreed in 1950, when Member States of the Council of Europe, meeting in Rome, adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). This drew heavily on the provisions of the Universal Declaration, but for those states which ratified the Convention it became fully binding on them in the eyes of international law. The UK was the first country to ratify the ECHR, in 1951, and in accordance with the provisions of the Convention it then became binding on the UK as well as other ratifying countries, which included Ireland, in 1953.

2

Brice Dickson and Brian Gormally

All of these documents promised protection of civil and political rights, such as freedom from arbitrary arrest, the right to a fair trial, freedom of expression, freedom of religious belief and freedom of association. But the American Declaration and the Universal Declaration also promised protection of social, economic and cultural rights, such as the right to the preservation of health, the right to education and the right to work. In 1966, in order to convert the aspirational provisions of the Universal Declaration into binding treaty obligations, the UN adopted two International Covenants: one on civil and political rights, the other on economic, social and cultural rights. A year earlier it had adopted a treaty aimed at tackling racial discrimination. Today there are nine so-called ‘core’ UN human rights treaties: — International Convention on the Elimination of All Forms of Racial Discrimination 1965 — International Covenant on Civil and Political Rights 1966 — International Covenant on Economic, Social and Cultural Rights 1966 — Convention on the Elimination of All Forms of Discrimination Against Women 1979 — Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 — Convention on the Rights of the Child 1989 — Convention on the Rights of All Migrant Workers and Members of their Families 1990 — Convention on the Rights of Persons with Disabilities 2006 — Convention for the Protection of All Persons from Enforced Disappearance 2006 The UK has still to ratify two of these core treaties—those on Migrant Workers and on Enforced Disappearances. Ireland has also still to ratify those two treaties, and also the Convention on the Rights of Persons with Disabilities (even though it was prominent in the drafting of that treaty). The gap concerning economic, social and cultural rights in the European framework was partly filled by the adoption of the European Social Charter in 1961, another document prepared by the Council of Europe; years later, in 1996, it was re-issued in a revised form. The Member States of the European Union (EU) also agreed their own ‘Social Chapter’, as part of the Maastricht Treaty of 1992. The UK ratified the European Social Charter in 1962 and eventually agreed to abide by the Maastricht Social Chapter in 1997; it has not yet ratified the Revised European Social Charter. Ireland ratified the original European Social Charter in 1964 and the revised version in 2000; it also agreed to the Maastricht Social Chapter in 1992. The Treaty of Amsterdam, signed in 1997, strengthened the EU’s commitment to human rights still further, leading to, amongst other measures, Directives on Race and Employment Equality in 2000. Those Directives resulted in legislation throughout the UK (and also in Ireland) strengthening the right not to be

Introduction

3

discriminated against on the grounds of race, religion, age, disability or sexual orientation. Also in 2000 the EU proclaimed its Charter of Fundamental Rights, one of the world’s most far-reaching statements of rights. This finally came into force for all EU Member States on 1 December 2009, when the Treaty of Lisbon took effect. People throughout the EU can rely on this Charter in relation to any issue which falls within the competence of EU bodies, although, because of disagreement over the meaning of a protocol to the Charter specifically demanded by the UK Labour government at the time, there remains some doubt as to the extent to which the social rights set out in Title IV of the EU Charter are enforceable in UK courts.

The Enforcement of International Human Rights Law It is all very well to have international laws on human rights, but if those laws are imperfectly enforced they may as well not exist. International agreements on human rights are particularly difficult to enforce because there is, as yet, no global supreme body to which governments can be made answerable. The UN has tried to get round this problem by insisting that states which ratify the core human rights treaties must periodically submit reports to the UN explaining how they are implementing their treaty obligations. A series of ‘treaty-monitoring bodies’ has been established to consider and comment on these reports, but no sanctions are imposed in relation to identified failures of implementation. For seven of the nine core UN treaties a complaints mechanism has also been established, to allow people living in the states that have specifically agreed to this to submit complaints to the relevant treaty-monitoring body; the complaints mechanism for the Conventions on the Rights of the Child and on the Rights of Migrant Workers have not yet entered into force. The UK has agreed to allow complaints to be issued against it only under the Convention on the Elimination of Discrimination Against Women (since 2004) and the Convention on the Rights of Persons with Disabilities (since 2009). Ireland has agreed to allow complaints against it under the Covenant on Civil and Political Rights (since 1989), the Convention Against Torture (since 1992) and the Conventions on the Elimination of Racial Discrimination and Discrimination Against Women (both since 2000). Under six of the core UN treaties the treaty-monitoring bodies can also conduct inquiries into the human rights situation within states that agree to this procedure. The UK has agreed to such inquiries as regards the Convention Against Torture, the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of Persons with Disabilities. Ireland has agreed to it only as regards the first two of those treaties. Enforcement of the ECHR is much more meaningful than for any of the core UN human rights treaties because there is an international court in Strasbourg in France—the European Court of Human Rights—which considers complaints

4

Brice Dickson and Brian Gormally

lodged by individuals living in any of the 47 Council of Europe states. However, the responsibility for overseeing the implementation of the European Court’s judgments rests with the Council of Europe’s Committee of Ministers and, since this is a body composed entirely of political representatives, it is not always as effective as it should be. Full enforcement of judgments sometimes takes years to achieve. A current example is the UK’s continuing refusal to comply with a European Court judgment in 2005 which requires removal of the UK’s blanket ban on prisoners voting in elections.

The Development of Human Rights Law at the National Level In national legal systems there has been a comparable growth in human rights law to that on the international plain. Nearly all countries now have a written constitution containing a Bill of Rights. One of the oldest and best known is that of the USA, where the influence of the first 10 amendments to the 1776 Constitution— adopted in 1791 and collectively known as the Bill of Rights—has been profound. In more recent years, many other former British colonies have marked their independence by adopting a constitution which includes a guarantee for human rights. Even current colonies, such as Gibraltar, are governed by legal provisions guaranteeing human rights. The 1937 Constitution of Ireland places Articles 40–44 under the general title of ‘Fundamental Rights’ and they guarantee such rights as the right to be held equal before the law, the right to one’s life, person, good name and property, the right to liberty, freedom of expression, freedom of assembly and association, the right of children to education, and the right to freedom from religious discrimination. Ireland later made the ECHR part of its domestic law by passing the European Convention on Human Rights Act in 2003. The Constitution of India of 1950 contains similar legally enforceable fundamental rights, partly based on the Irish model. In Canada, a Bill of Rights was enacted in 1960 but this was supplanted in 1982 by a much more far-reaching Charter of Rights and Freedoms. Australia—a federal state with a written constitution—has decided not to adopt a Bill of Rights at the national level, but some of the states within the federation have enacted their own Bill of Rights. New Zealand—a unitary state with no written constitution and only one chamber in Parliament—adopted a Bill of Rights in 1990. Like the Bill of Rights which still operates in Hong Kong—even after its return to China in 1997—the New Zealand Bill is based almost word for word on the UN’s International Covenant on Civil and Political Rights. At present the most advanced national Bill of Rights is probably the one contained in the Constitution of South Africa, in force since 1996. Nor is the tendency towards protection of human rights apparent only in countries which have an historical connection with English law. In France, the

Introduction

5

Declaration of the Rights of Man and of the Citizen (1789) was specifically incorporated into the preamble to the Constitution of the current Fifth Republic in 1958. In Germany, the Basic Law of 1949 devotes the first 19 of its 146 Articles to basic rights. Moreover, in both these countries the constitutional courts, or their equivalents, have gone to considerable lengths to develop the substance of these rights. At the national level, countries differ greatly in the ways in which they permit citizens to claim their rights and liberties. In the USA, any person can challenge any law in any court if he or she thinks that it violates one of the rights guaranteed by the US Constitution. If the US Supreme Court confirms that a law made by Congress (the US Parliament) is invalid, then that law can be ignored by everyone in the land. In Ireland, constitutional challenges can be brought to courts either before or after a law has been passed, although if the law is declared constitutional before being passed it cannot be challenged again later.

Human Rights Law in the United Kingdom In the UK, where the unwritten constitution places ultimate power in Parliament and not in any court, it is generally not possible for a court to declare primary legislation (ie an Act of Parliament) to be invalid on the basis that it infringes human rights. The only exception arises when a court encounters provisions in an Act which are not compliant with a directly enforceable human rights standard laid down by EU law (which now includes the EU Charter of Fundamental Rights). However, the enactment of the Human Rights Act 1998 was a key development in ensuring respect for human rights in the UK. The Act was brought fully into force on 2 October 2000, although it had become binding on the devolved legislatures in Belfast, Cardiff and Edinburgh when they started operating in 1999. Today, therefore, most of the rights provided for by the ECHR can be directly relied upon in UK courts. The Act makes it unlawful for any public authority to act incompatibly with the rights contained in the ECHR unless a provision of primary legislation means that the authority cannot act in any other way. It also requires all legislation to be interpreted and given effect (by everyone) as far as possible in a way which is compatible with Convention rights. Courts now have to ‘take into account’ the judgments issued by the European Court of Human Rights and are bound to develop the common law compatibly with Convention rights. Any court can declare legislation other than an Act of Parliament to be invalid if it infringes Convention rights, and the High Court, the Court of Appeal and the Supreme Court can all declare parts of an Act of Parliament to be incompatible with Convention rights (but not invalid). In response to a declaration of incompatibility a government minister can make what is called a ‘remedial order’, which amends the offending legislation in a way that makes it compatible with Convention rights. To date about 30 declarations of incompatibility have been

6

Brice Dickson and Brian Gormally

issued in England, Wales or Scotland and one has been issued in Northern Ireland (see page 21). As a result of the Belfast (Good Friday) Agreement of 1998 and the Northern Ireland Act 1998, the Northern Ireland Human Rights Commission was tasked with consulting on the scope for a Bill of Rights for Northern Ireland, a document which would supplement the rights contained in the ECHR. After a prolonged process of consultation and public debate the Commission finally presented its advice on this matter to the Secretary of State for Northern Ireland at the end of 2008. The UK government has since shown no enthusiasm for the advice and is still considering whether a Bill of Rights should be enacted for the whole of the UK, perhaps in place of the existing Human Rights Act, with the possibility of a few sections of the Bill being devoted specifically to Northern Ireland. The position of the CAJ, and of the Northern Ireland Human Rights Consortium of which it is a leading member, remains that Northern Ireland needs its own strong and inclusive Bill of Rights. The CAJ is also strongly opposed to the repeal of the Human Rights Act 1998, which the Conservative Party has promised to repeal if it forms the next UK government after the general election in May 2015.

The Role of Non-governmental and Statutory Organisations In practice, the educational and campaigning activities of non-governmental organisations (NGOs) may be more effective in improving the law on human rights than court actions. A large number of human rights NGOs now exist, the best known being Amnesty International, which has its global headquarters in London, national sections throughout the world and a regional office in Belfast. Within the UK the two most prominent human rights NGOs are probably Liberty (formerly known as the National Council for Civil Liberties) and JUSTICE (which is the UK branch of the International Commission of Jurists). In Northern Ireland much valuable work in the field of human rights was carried out in the 1960s and early 1970s by the now defunct Northern Ireland Civil Rights Association. In subsequent years a number of other organisations were formed to work on specific issues. In 1973 the UK government set up the Standing Advisory Commission on Human Rights, to advise it on the law relating to discrimination and other matters in Northern Ireland. Under the Northern Ireland Act 1998 this body was replaced in 1999 by the Northern Ireland Human Rights Commission, the powers of which were further extended by the Justice and Security (NI) Act 2007. Over the years a number of other statutory bodies have been established to deal with various human rights issues. The work of the Police Ombudsman, for example, is extensively covered in Chapter 5.

Introduction

7

In 1999 the Equality Commission was established, bringing together the existing anti-discrimination bodies into one unified organisation; more is said about its work in Chapter 12. In 2003 a Northern Ireland Commissioner for Children and Young People was appointed, and in deciding whether and how to exercise his or her functions the Commissioner must have regard to the UN Convention on the Rights of the Child of 1989; more is said about this in Chapter 21. The Commissioner for Older People for Northern Ireland, a post created in 2011, must also have regard to the UN Principles for Older Persons of 1991 (see Chapter 18). In 1981 the CAJ was formed as an independent voluntary organisation to carry out more general monitoring of the legal system in Northern Ireland. It has sought to maintain high standards of objectivity and political impartiality, aligning itself only with the international human rights movement. This book is a concrete manifestation of its goal to provide information about the protection of human rights in Northern Ireland to as wide an audience as possible.

The Content of This Book The chapters in this book offer information on a wide variety of common legal problems encountered by people living in Northern Ireland. Although they are ascribed to particular authors, they have been edited and cross-referenced so as to make the book more than a disparate collection of essays. The book aims to be reasonably comprehensive (it has three more chapters than the previous edition) but inevitably there are still some omissions. We have not been able to include chapters on consumer rights, patient rights, property rights or electoral rights, for example. On many topics authors have had to be briefer than they would have liked, but more information can be obtained from the publications listed in the section at the end of the book on Further Reading. The book begins with a description of how victims who believe that their human rights have been violated can seek to obtain remedies through the courts and tribunals of Northern Ireland and with an explanation of the European dimension, public law remedies and legal aid. It then proceeds to describe the powers of the police, where the distinction between anti-terrorism and ordinary laws is most apparent. The next two chapters look more closely at the rights of detainees and at the system for handling complaints against the police. Chapter 6 examines the position of prisoners, an area which has given rise to a large amount of litigation in Northern Ireland. Chapter 7 deals with issues related to the rights of immigrants and applicants for asylum. Chapters 8 and 9 explain the extent of people’s rights to assemble and express themselves, whether through demonstrations, meetings, organisations or direct speech. Chapters 10 and 11 cover the right to access information and the right to privacy, both topics of great topical interest.

8

Brice Dickson and Brian Gormally

There is then a general introductory chapter on equality rights (Chapter 12), which provides details on the work of the Equality Commission for Northern Ireland and the statutory duty which is placed on public authorities to promote equality of opportunity across the nine grounds of gender, sexual orientation, age, religion, political opinion, disability, race, marital status and dependency. Seven separate chapters then deal with sex discrimination, religious and political discrimination, race discrimination, the rights of people with disabilities, sexual orientation discrimination, ageism and the rights of people who have mental health problems. Chapter 20 outlines the law affecting family and sexual life while Chapter 21 provides information on children’s rights. The final five chapters are devoted to social and economic rights, which some would argue are even more significant than civil and political rights. They deal in turn with education, employment, housing, social security and environmental rights. Each chapter aims to explain the current law in plain English and for reasons of space is restrained in offering a critique. At times contributors have found it difficult to conceal their objections to some of the relevant legal provisions and the CAJ endorses the points they make in this regard. Unless otherwise stated, the contributors are writing in their personal capacity and not on behalf of any organisation. As far as possible contributors have sought to ensure that their chapters accurately reflect the law in Northern Ireland as of 1 September 2014. If there are mistakes, please let us know.

2 Victims’ Rights BRICE DICKSON

An important aspect of law is the remedies it provides for people who are victims of breaches of law. Not every breach of law creates a victim (the growing of cannabis for one’s own use is sometimes cited as an example of a victimless crime) and society in general has an interest in ensuring that breaches of law are dealt with fairly and in accordance with fixed rules. Increasingly, however, the law is recognising that the interests of victims need to be taken more fully into account in the way in which the criminal justice system operates. To help convey how victims of illegal behaviour can obtain a remedy for the hurt and loss they may have suffered, this chapter first says a little about Northern Ireland’s criminal and civil court systems, and then describes the arrangements for legal aid, tribunals and inquests. After that, the European dimension, as represented by both EU law and the European Convention on Human Rights (ECHR), is touched upon. Particular attention is then paid to the remedying of grievances against public bodies, whether through the process of ‘judicial review’ or through complaints to the Ombudsman. Finally, some of the institutions which have been created to help specific types of victims are described.

The Criminal Courts Less serious criminal offences are dealt with in Northern Ireland by district judges sitting in magistrates’ courts without a jury. A person found guilty of these ‘summary’ offences is liable to a sentence of imprisonment of up to six months, a fine, or both. An appeal against a magistrates’ court’s decision can go either to a county court (on questions of fact and law) or to the Court of Appeal of Northern Ireland (on questions of law only). From the Court of Appeal an appeal can go to the Supreme Court in London, but this happens extremely rarely. Serious offences are tried in the Crown Court by a county court or High Court judge sitting with a jury. The committal stage for these offences, that is, the preliminary hearing into whether or not the accused person should be ‘committed’ for trial is, however, heard in a magistrates’ court. An appeal against conviction

10

Brice Dickson

or sentence in the Crown Court goes to the Court of Appeal and from there can go, on a point of law only, to the Supreme Court. The prosecution cannot appeal against the acquittal of a person tried in the Crown Court, although the Attorney General may refer a point of law to the Court of Appeal for guidance in future trials and an acquitted person can be tried again if new evidence comes to light. The Attorney General for Northern Ireland also has the power to refer a Crown Court’s sentence to the Court of Appeal if he or she believes that it was unduly lenient. There are some serious offences which the Director of Public Prosecutions (DPP) can certify should be tried without a jury because they appear to involve members of a proscribed organisation or sectarianism (ie hostility of one person or group towards another person or group on religious or political grounds). These trials are governed by sections 1 to 9 of the Justice and Security (NI) Act 2007 and are the successors to the old ‘Diplock courts’ which sat between 1973 and 2007. The Criminal Cases Review Commission (CCRC), which is located in Birmingham but has a remit which extends to Northern Ireland, has the power to refer alleged miscarriages of justice to the Court of Appeal of Northern Ireland, and in some instances this has led to the quashing of a conviction (eg in the cases of William Gorman, Patrick McKinney, Ian Hay Gordon and Danny McNamee). In recent years several convictions in the juryless Diplock courts have been referred to the Court of Appeal of Northern Ireland by the CCRC and that court has overturned the convictions because, for example, the accused was not given proper access to a solicitor at the time or the police failed to put all relevant evidence before the court (see, eg R v Brown and others, 2012).

The Rights of Victims in Criminal Cases Under the current law, victims of crimes have surprisingly few rights before, during or after the criminal trial of a person who is prosecuted for the crime in question. They do not even have the right, for example, to be told that the trial is about to commence, to be legally represented at the trial or to have a say in what the sentence should be if the person on trial is convicted. Nor can they insist on being told the reasons behind a decision of the DPP not to prosecute, although the Public Prosecution Service is currently running a pilot project to see if it can move to a system whereby reasons are given for such decisions as a matter of course. At present, reasons are given only in exceptional circumstances, at the discretion of the DPP. A refusal to give reasons can, in theory, be challenged by making an application for judicial review (see page 22), but judges are very reluctant to interfere with the DPP’s discretion in this area (see R v Chief Constable of the RUC, ex parte Adams, 2000). If the victim is to be a witness in the case and is deemed to be vulnerable (a category including all persons under 17 years of age), the Criminal Evidence (NI) Order 1999 allows for ‘special measures’ to be taken to assist the witness

Victims’ Rights

11

during the trial. This may include permitting the witness to give evidence from behind a screen, out of the sight of the accused. Evidence can in some instances be given by a video-link. The Justice (NI) Act 2002 conferred some new rights on victims. By section 68 the Minister of Justice operates a Victim Information Scheme, under which information is given to victims who wish to receive it about the release of prisoners who are serving sentences for crimes inflicted on them. In cases where the Minister is considering the temporary release of a prisoner, the victim of that prisoner’s crime can make representations to the effect that the release would threaten his or her safety or otherwise adversely affect him or her (s 69). Section 71 of the Justice (NI) Act 2002 also requires the Minister of Justice to devise a strategy for enhancing community safety in Northern Ireland. Moreover, he or she is empowered (but not required) to divide Northern Ireland into areas and to establish for each area a body tasked with enhancing community safety in that area. Such Community Safety Partnerships were established in 2003. Under the Justice Act (NI) 2011 these Community Safety Partnerships have now been merged with District Policing Partnerships to form Policing and Community Safety Partnerships (PCSPs). There is one PCSP for each of the 26 district council areas in Northern Ireland; these will be reduced to 11 from May 2015. In 2013 the Department of Justice issued a new strategy on the needs of victims and witnesses (‘Making a Difference’), which built on the Northern Ireland Office’s 2007 strategy ‘Bridging the Gap’. The strategies focus on improving access to information about the criminal justice system and about how cases are progressing through it, as well as on enhancing the quality of services provided to victims and witnesses. The Department of Justice now allows victim impact statements to be submitted to courts, which is an opportunity for victims to express in person the full impact which a crime has had on them. The Department also allows reports by experts to be placed before the court on victim impact and ‘community impact statements’ can be submitted if a high profile crime or series of crimes appears to have had a significant impact on a community. At present these systems operate on a non-statutory basis, but the Department plans to make them statutory later in 2014 or in 2015. The Department is developing ‘witness care units’ as well as ways of extending the availability of ‘special measures assistance’ for those who need them when appearing in court. It is also in the process of finalising a ‘Victim of Crime Charter’, setting out the full list of victims’ entitlements to information and other services from organisations within the criminal justice system. In the latest draft of the Charter there are 22 such entitlements.

Victim Support Northern Ireland As well as numerous victims’ groups in Northern Ireland there is a long-standing organisation called Victim Support Northern Ireland (VSNI) which, largely

12

Brice Dickson

through the work of volunteers, has been helping victims of all types of crimes for many years. Funded by the Department of Justice, VSNI helps to operate the Victim Information Scheme issued by the Department under the Justice (NI) Act 2002. It provides emotional support and practical help to victims, for example, by helping them with their applications for compensation.

Juries The law dealing with qualification for jury service and the empanelling, summoning and balloting of juries is to be found in the Juries (NI) Order 1996. Some of its provisions apply to juries for inquests as well as to juries for criminal cases. In civil cases (where juries are very rare) both the plaintiff and the defendant can each challenge the presence of up to six proposed jurors without giving any reason for the challenges; other proposed jurors can be challenged provided the judge thinks that satisfactory reasons have been supplied (art 14). In criminal cases the prosecution can challenge proposed jurors only if reasons are given, whereas the defence can challenge up to 12 proposed jurors without giving reasons and only thereafter must they ‘show cause’ for their challenges (art 15). The Northern Ireland Courts and Tribunals Service has online and hard copy versions of a leaflet and booklet which provide information to prospective jurors about what they can expect from the experience of serving on a jury (see www.courtsni.gov.uk).

The Civil Courts In general terms, the criminal law is primarily concerned with the punishment of those who have broken the law. The civil courts, on the other hand, are concerned with compensation and redress, property disputes and questions of status, such as divorce and adoption. There are three types of court for civil proceedings in Northern Ireland: magistrates’ courts, county courts and the High Court. Which court a civil matter first comes before depends largely on the seriousness of the issue, including the amount of money or the value of the property involved. Civil proceedings are often settled between the parties before the matter reaches court.

Magistrates’ Courts The powers of magistrates in civil matters are less extensive than their powers in criminal matters, on which they spend the greater amount of time. In civil matters, the procedure used in a magistrates’ court is simple and speedy, and litigants are often represented by a solicitor rather than a barrister. The main civil powers of a

Victims’ Rights

13

magistrates’ court relate to domestic matters, such as financial provision orders, non-molestation orders and occupation orders (see Chapter 20). Magistrates’ courts also deal with small debts, including rent arrears (although there is an overlap with the small claims court: see below), proceedings to evict tenants (including those brought by the Housing Executive and housing associations), and applications to renew various licences. Appeals against a magistrates’ court’s decision in civil matters go to a county court or (on questions of law only) to the Court of Appeal.

County Courts County courts can hear, for example, claims in ‘tort’ (such as personal injury claims following an accident at work or on the roads), claims for breach of contract, some undefended divorce petitions, equality of opportunity and discrimination claims other than in the field of employment (see Chapters 13–18) and applications to determine the proper rent for a protected tenancy under the Rent (NI) Order 1978 (see Chapter 24). In tort and contract cases the highest sum that can be claimed is £30,000; otherwise the claim has to be heard by the High Court (see below). County courts have a special ‘small claims’ procedure for many claims not exceeding £3,000. This procedure is commonly employed by business and commercial organisations to claim instalments of money owed for goods already delivered or services already provided, but consumers can also use it if they wish to claim against shops or suppliers. Unlike in England and Wales, a small claims court cannot be used for road accident claims in Northern Ireland. As already noted, county courts also hear some appeals, including appeals against decisions of Compensation Services, an agency of the Department of Justice, on claims for compensation regarding criminal damage to property (see page 14). Appeals against county court decisions in civil matters go to the High Court or (on questions of law only) to the Court of Appeal.

The High Court The jurisdiction of the High Court is not limited by the value of the claim being made. There are three Divisions of the High Court: the Queen’s Bench Division, which deals principally with claims in tort and for breach of contract, the Chancery Division, which deals mainly with property matters, and the Family Division, which deals with petitions for divorce or nullity and matters affecting those who are mentally ill. The Queen’s Bench Division (Crown Side) deals with applications for judicial review (see page 22 below). Appeals against High Court decisions can go to the Court of Appeal and from there to the Supreme Court in London, but appeals in judicial review cases involving criminal matters go directly

14

Brice Dickson

from the Queen’s Bench Division to the Supreme Court. It is also possible for a civil case to go on what is called a ‘leapfrog appeal’ directly from the High Court to the Supreme Court. However, in all cases an appeal from a court in Northern Ireland to the Supreme Court can proceed only if permission to appeal has first been granted (by either court).

Compensation for Personal Injuries and Property Damage If someone is injured, or has his or her property damaged, as a result of another person’s negligent or deliberate act, it will usually be possible to claim compensation from that other person. If the person can be identified and has enough money, the claim can be taken through the civil courts; as explained above, a claim for up to £30,000 would usually be heard by a county court and a larger claim would usually be heard by the High Court. If the person cannot be identified but what he or she did amounts to a criminal offence, then it may be possible to claim compensation not from the perpetrator but from the state. These claims are called criminal injury or criminal damage claims. Compensation Services makes the initial decision on the claim (which has to be notified to the police within two days in the case of an injuries claim and 10 days in the case of a damage claim). Appeals in criminal injury cases go to an Appeals Panel while those in criminal damage cases, as already noted, go to a county court. For the calculation of compensation in criminal injury cases there is a fairly strict ‘tariff ’ system, dependent on the seriousness of the injury suffered by the victim. Claims in respect of criminal damage can succeed only if a loss of more than £200 has been suffered.

The Enforcement of Civil Judgments A person who has lost civil litigation may be ordered by a court to pay money to the winner of the litigation. These people are known respectively as the judgment debtor and the judgment creditor. The judgment debtor is required to pay within a reasonable time. If he or she does not do so, the judgment creditor may ask the Enforcement of Judgments Office to send the debtor a document called a notice of intent to enforce. This orders the debtor to pay within 10 days. If the debtor still does not pay, the creditor may apply to the Office for actual enforcement of the judgment. As this can be an expensive procedure, it should be adopted only if the creditor is sure that the debtor has assets with which to pay. If the debtor does not have the means with which to satisfy the order, the creditor must accept that the original judgment in his or her favour may be worth nothing.

Victims’ Rights

15

Legal Aid, Advice and Assistance There are various legal aid schemes designed to provide financial assistance in legal matters. The controlling legislation is the Legal Aid, Advice and Assistance (NI) Order 1981 and the regulations made under it. The schemes are usually ‘means tested’ in terms of both disposable income and disposable capital and today the financial limits are such that help is generally only available to people who receive income support. The schemes are: — The ‘green form’ scheme (its popular name) allows a solicitor to offer advice on any area of the law of Northern Ireland. The advice may be written or oral; it includes preparation of all types of documents but does not extend to representation at hearings. The assisted person may be required to make a financial contribution to the assistance, but the value of that assistance cannot exceed the sum of £88 (a figure which has not been raised for many years). — ABWOR—assistance by way of representation—is based on the green form scheme and is available for, amongst other things, proceedings before the Mental Health Review Tribunal. — Civil legal aid covers most civil proceedings in the higher courts (excluding libel actions) but is not available for inquests or tribunals. The Department of Health, Social Services and Public Safety assesses financial eligibility for civil legal aid. The Law Society’s Legal Aid Department also applies a ‘merits’ test to determine whether or not it is reasonable for the party concerned to take or defend the proceedings in question. An assisted person may be required to make some financial contribution. — Criminal legal aid is available for the defence of criminal proceedings by a solicitor or barrister. If granted by the court it is entirely free in Northern Ireland, unlike in England and Wales. The system for delivering legal aid in Northern Ireland was radically reformed as a result of the Access to Justice (NI) Order 2003, which gave responsibility for administering the system to a new body, the Northern Ireland Legal Services Commission. Civil legal services are provided out of a fixed annual fund and service providers have to tender for the right to access that fund. The Commission operates a Funding Code and applies quality control measures to ensure that standards are being maintained. Criminal legal services, however, are not provided out of a capped budget. The green form and ABWOR schemes continue to operate within the same parameters as before. Since 2010 the Department of Justice has been trying to curb the amount spent on legal aid in Northern Ireland (which is much greater per head of population than anywhere else in the UK) by reducing the amounts which lawyers can claim for the services they render, especially in criminal and family cases.

16

Brice Dickson

Tribunals Tribunals are now very much a part of the legal system of Northern Ireland, dealing with thousands of cases every year. A tribunal is established by legislation when the intention is to provide a system of dispute resolution which is both specialised and relatively speedy, cheap, informal and accessible. It is often composed of three people, of whom only one, the chairperson, is legally qualified. Generally speaking, legal aid is not available for those taking cases to tribunals. The best known types are industrial tribunals (which deal with employment rights, including those relating to discrimination at work: see Chapters 13–18 and 23), the Mental Health Review Tribunal (see Chapter 19) and social security appeal tribunals (see Chapter 25). An appeal often lies from a tribunal decision, on a point of law, to the Court of Appeal of Northern Ireland, although there may also be an intermediate appeal before this stage is reached. Where the legislation provides an individual with recourse to an appeal tribunal, he or she should, as a general rule, follow that procedure rather than apply for judicial review. Tribunal decisions are themselves subject to judicial review, but an applicant will be successful only if one or more of the factors mentioned on pages 22–23 below is present.

Inquests The main legislation on inquests in Northern Ireland is the Coroners Act (NI) 1959, as amended, and the statutory rules made under it, in particular the Coroners (Practice and Procedure) Rules (NI) 1963, as amended. The Coroners Service is headed by a High Court judge and in addition there is one senior coroner and three coroners. To be eligible for appointment a person has to be a solicitor or barrister of at least five years’ standing. The function of a coroner is to investigate unexpected or unexplained deaths, deaths in suspicious circumstances and deaths occurring as a result of violence, misadventure or unfair means. The coroner has discretion whether or not to order a post-mortem examination of a body but in practice a post-mortem will be held in any situation where the initial explanation of the death fails to satisfy the coroner. If the investigation indicates that death was due to unnatural causes an inquest is likely to be held; this happens in approximately 20 per cent of investigations. The inquest is held in public and usually takes place without the help of a jury, but a jury must be summoned where the death occurred in prison, where it was caused by an accident, poison or a notifiable disease, or where it occurred in circumstances which, if they were to continue or recur, would be prejudicial to the health or safety of the public. Unlike in England, there is no requirement to

Victims’ Rights

17

summon a jury where a death has occurred in police custody or by the action of the police in pursuance of their duty, although the coroner has discretion to summon a jury in such a case. A jury at an inquest in Northern Ireland has between seven and 11 members. The purpose of an inquest is to ascertain who the deceased was and how, when and where the deceased came to die. However, an inquest in Northern Ireland does not return a ‘verdict’, as such. Prior to 1981 a coroner or a jury could return a verdict of death by ‘natural causes’, ‘accident’, ‘misadventure’, ‘his (or her) own act’, ‘execution of sentence of death’, or an ‘open’ verdict. Since 1981 a verdict has had to take the form of factual ‘findings’. Most importantly, neither the coroner nor the jury is permitted to express ‘any opinion on questions of criminal or civil liability’ (rule 16 of the 1963 Rules). In practice, an inquest is not opened until the coroner has been informed that no criminal proceedings will be brought in relation to the death. Where a person is charged with a criminal offence, the coroner must adjourn any inquest, ‘in the absence of reason to the contrary’ (rule 13(1)), until after the completion of the criminal proceedings, including an appeal. This can obviously lead to long delays in the holding of an inquest. The coroner also has discretion not to hold an inquest after criminal proceedings. It used to be the law that deaths occurring before 2 October 2000, when the Human Rights Act 1998 came fully into force, did not have to be investigated in a way that was totally compliant with how the European Court of Human Rights (ECtHR) has interpreted the right to life under Article 2 of the ECHR. But since the decision of the Supreme Court in Re McCaughey (2011) it is now clear that even pre-2000 deaths may have to be investigated to that standard. There are more than 50 so-called ‘legacy’ inquests still pending in Northern Ireland; these are mostly inquests into deaths caused by members of the security forces in Northern Ireland between 1970 and 1998. In 2012 an inquest was held into the killing of Pearse Jordan, a member of the IRA killed by the police in 1992. The jury could not reach agreement on any of the main issues involved (unanimity is required at inquests in Northern Ireland, but not in England and Wales) and in 2014 Stephens J ruled that a jury should not have been summoned for the inquest and he quashed the verdict (Re Jordan’s Applications). There will now need to be a new inquest without a jury.

Procedures at Inquests The procedure at an inquest is regulated by both statutory rules and the coroner’s own discretion, the exercise of which may be subject to judicial review. The calling of witnesses, for example, is a matter for the coroner’s discretion. Until 2002 the coroner was prohibited from compelling any person to give evidence ‘who is suspected of causing the death or has been charged or is likely to be charged with an offence relating to the death’, but this prohibition (contained in rule 9(2) of the

18

Brice Dickson

1963 Rules) was removed in an effort to comply with four important judgments handed down by the ECtHR in 2001 (Jordan v UK etc). If such a person is called to give evidence, he or she does not have to answer a question if to do so would be self-incriminating. Witnesses who give evidence may be questioned (but not cross-examined) by both the coroner and by other ‘properly’ interested parties, either directly or through a barrister or solicitor (rule 7(1)). Evidence is given under oath and the questions asked must be confined to the remit of the inquest. Hearsay evidence is admissible. The relatives of the deceased are not entitled to call witnesses, but they can suggest the names of potential witnesses to the coroner. Documentary evidence is also placed before the inquest. In general, the police are obliged to disclose to the coroner all relevant evidence and all documents provided to the coroner must also be copied to the relatives of the deceased (McCaughey v Chief Constable of the PSNI, 2007). If the Secretary of State believes that a part of the written or oral evidence would put national security at risk, he or she can issue a Public Interest Immunity Certificate to bar the disclosure of the evidence to the inquest or control the way in which oral evidence is given (eg from behind a screen). The coroner (or the High Court on judicial review) may consider in general terms whether national security would indeed be at risk, but they cannot make their own assessment of the degree of risk involved. Before the inquest concludes, relatives of the deceased may be allowed to make a statement. Once the inquest is over the coroner or the jury delivers their findings, which must be confined to ‘a statement of who the deceased was, and how, when and where’ he or she died (rule 2(1)). ‘How’ a person dies can include ‘by what means’ he or she died. There cannot be an appeal against the decision at a coroner’s inquest but, as in the Jordan case mentioned on the previous page, the proceedings may be subjected to judicial review. Although legal aid for inquests was contemplated by the Legal Aid, Advice and Assistance (NI) Order 1981 and by the Access to Justice (NI) Order 2003, the relevant provisions have never been brought into force and legal aid is not, therefore, currently available. However an ex gratia scheme has been established, administered by the Northern Ireland Courts and Tribunals Service, whereby financial assistance can be granted in exceptional circumstances. Moreover, ‘green form’ legal advice and assistance (see page 15) is available for people who meet the financial eligibility criteria and who want legal help prior to the inquest.

EU Law The law of the EU is also part of the domestic law of the UK. EU law deals with many matters concerning economic and social activity, most notably the free movement of goods, the free movement of workers, the freedom to provide and to receive services, and discrimination. It is to be found in the Treaties of the EU,

Victims’ Rights

19

in various Regulations and Directives, and in decisions of the Court of Justice of the EU (CJEU) and the General Court, which both sit in Luxembourg. If a matter involving EU law comes before a Northern Ireland court or tribunal, one of two procedures may be followed. If the EU law is clear, the domestic court must follow and apply it (and if necessary not apply any conflicting domestic law, even if it is part of an Act of the Westminster Parliament). If the meaning of the EU law is not clear, the domestic court may make a reference to the CJEU for a preliminary ruling under Article 267 of the Treaty on the Functioning of the EU (for an example, see Johnston v Chief Constable of the RUC, 1987, which concerned discriminatory treatment of female police reservists in Northern Ireland). While the reference is pending, the domestic proceedings are suspended. The CJEU gives its ruling only on the meaning of EU law (not on the domestic law), leaving the domestic court or tribunal to apply the ruling on EU law to the facts before it. Lower courts and tribunals have discretion whether or not to make an Article 267 reference, but domestic courts and tribunals against whose decisions there is no judicial remedy under domestic law must make a reference on questions concerning the interpretation or application of EU law. The Article 267 procedure cannot be invoked in those areas of domestic law which are not actually or potentially affected by EU law (eg education or housing law). Since 1 December 2009, when the Treaty of Lisbon came into force, the EU Charter of Fundamental Rights has been part of EU law. This means that when a Member State of the EU, or an EU body itself, is implementing EU law it must ensure that it respects all the rights set out in the EU Charter. There is some dispute as to whether this makes the so-called ‘solidarity rights’ in Part IV of the Charter, which include several social and economic rights, directly enforceable though courts in the UK. The UK government (and its predecessor) thinks it does not, but a clear decision of the CJEU on the matter is still awaited.

The ECHR and the Human Rights Act 1998 The ECHR is an international treaty drawn up in 1950 which has been ratified by the UK government and is, therefore, binding upon it in international law. It guarantees protection of rights such as the rights to life, liberty, a fair trial and respect for one’s private and family life. It also seeks to protect fundamental freedoms, including freedom from torture or inhuman or degrading treatment or punishment, freedom of thought, conscience and religion, freedom of expression and freedom of peaceful assembly. The ECHR is not a product of the EU but of the older and larger inter-governmental body known as the Council of Europe (which now has 47 Member States, including all 28 of the EU Member States). By virtue of the Human Rights Act 1998 most of the ECHR has been part of domestic law throughout the UK since 2 October 2000 (and, in the devolved regions, since devolution commenced in 1999). This means that individuals in

20

Brice Dickson

Northern Ireland can rely on their Convention rights in any court or tribunal proceedings there. They can also sue a public authority if they think that the authority has breached one of their Convention rights, but the claim must be brought within one year of the alleged breach (s 7). Anyone who is unhappy with the outcome of the local court or tribunal case— provided it has been taken as far as practicable through the domestic court system (this is called ‘exhausting your domestic remedies’)—can still take the issue to the ECtHR in Strasbourg. The ECtHR first decides whether the petition is admissible. It will be inadmissible if all domestic remedies have not yet been exhausted or if it is out of time (applications must usually be lodged within six months of the incident or decision being complained about), anonymous, substantially the same as a matter already examined by the Court, manifestly ill-founded or an abuse of the right of petition. The petition must also relate to a matter covered by the Convention, in terms of substance, location and time of the alleged violation. If the petition is ruled to be admissible, a Chamber of the ECtHR (comprising seven judges) will undertake an inquiry and try to secure a ‘friendly settlement’. This must, however, be compatible with the terms of the Convention. If it is not possible to secure a friendly settlement, the Court (occasionally after a short oral hearing) will draw up a judgment indicating whether or not there has been a breach of the Convention. The Court’s decision may be referred to a Grand Chamber of the Court (comprising 17 judges) if the state involved so requests and a panel of five judges agrees. In practice, after losing a case in Strasbourg most states delay changing their law or practice to bring it into line with the requirements of the Convention. The Council of Europe’s Committee of Ministers, a political body, has the role of ensuring that the Court’s judgments are eventually complied with. So far several cases from Northern Ireland have led to judgments by the ECtHR, including Dudgeon v UK (1981, on homosexuality), John Murray v UK (1996, on access to a lawyer), Jordan v UK (2001, on the investigation of suspicious deaths) and Devlin v UK (2001, on challenging political opinion discrimination). All of these have led to changes to the law or practice applying within Northern Ireland. In Magee v UK (2000) the ECtHR held that the applicant had not received a fair trial in Northern Ireland because of the conditions in which he had been kept at Castlereagh holding centre. Such a judgment does not itself quash the conviction arising from the unfair trial, but Mr Magee then applied successfully to the Court of Appeal of Northern Ireland to have his conviction quashed on the ground that it was unsafe (R v Magee, 2001). Amongst the most recent judgments by the ECtHR in cases emanating from Northern Ireland are McCaughey v UK and Hemsworth v UK (2013), where the judges in Strasbourg held that the UK was in breach of its duty to investigate suspicious killings in Northern Ireland promptly and effectively. In Wilson v UK (2012) a claim was made that Northern Ireland’s laws on domestic violence did not go far enough in protecting victims’ rights, but the claim was unsuccessful at the ECtHR.

Victims’ Rights

21

The Need for a ‘Victim’ Article 34 of the ECHR allows the European Court to consider applications only from ‘any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by [a state] of the rights set forth in the Convention’. This means that anyone who is not a direct victim cannot engage the Court’s interest. The CAJ, or the Northern Ireland Human Rights Commission (NIHRC), for example, cannot take an alleged breach of the Convention to the ECtHR unless they themselves are claiming to be the victims of the alleged breach. When the UK Parliament incorporated the ECHR into domestic law through the Human Rights Act 1998 it carefully preserved this rule (s 7(7)), but in the Justice and Security (NI) Act 2007 an exception was created (by s 14(2)) to allow the NIHRC to take human rights cases in domestic courts even though it is not itself a victim of the alleged breach. Other organisations might be eligible to make applications for judicial review (where the rules on ‘standing’ are less demanding: see page 23 below) but cannot take cases based directly on Convention rights unless they are themselves victims.

The Remedies Available The ECtHR may order the state to pay compensation—which it calls ‘just satisfaction’—to a successful applicant, as well as his or her legal costs. The ECHR itself requires each state which has violated a person’s rights and freedoms in the Convention to provide ‘an effective remedy before a national authority’ (art 13), but this is one of the ECHR provisions which was not inserted into UK law by the Human Rights Act 1998. Instead, section 8 of the Act says that, in relation to any act of a public authority which a court finds is unlawful because it breaches a Convention right, the court ‘may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate’. The section goes on to say that a court can award damages (ie compensation) only if it already has that power. Unfortunately this rules out criminal courts from giving such a remedy to victims in Northern Ireland. The Human Rights Act also makes it clear (in s 4) that, if a public authority is found to have breached a Convention right when it was doing something that was required by an Act of the Westminster Parliament, the court cannot declare the Act, or any part of it, to be invalid. But the High Court can nevertheless issue a ‘declaration of incompatibility’. Such a declaration leaves the domestic law unaltered for the time being, but in effect serves as an invitation to the government to ask Parliament to pass an amending piece of legislation, or to approve a ‘remedial order (see s 10 of the Human Rights Act 1998), which will bring domestic law into line with the ECHR’s requirements. So far there has been only one case in Northern Ireland where a judge has declared part of an Act of Parliament to be incompatible with the ECHR (Re McR’s Application for Judicial Review, 2002, regarding s 62 of

22

Brice Dickson

the Offences Against the Person Act 1861: see Chapter 20); the offending words in the 1861 Act were repealed by the Criminal Justice (NI) Order 2003. As far as Orders in Council are concerned, and legislation made by the Northern Ireland Assembly (whether as Acts, Rules, Regulations etc), these laws can be declared invalid by a court (s 3(2) of the Human Rights Act 1998). The only exception is where these laws had to be worded in the way they were because of a requirement of an Act of the Westminster Parliament. Before any legislation is declared invalid the courts must strive, so far as it is possible to do so, to read and give effect to it in a way which is compatible with the Convention rights (s 3(1) of the 1998 Act).

Judicial Review Judicial review is the main procedure available for challenging the validity of decisions taken by public bodies. Where a solely contractual or other private relationship exists between an individual and the body, judicial review is not appropriate and other remedies must be sought. Similarly, where an alternative remedy such as an appeal to a tribunal, or to a body’s internal review system, is both available and adequate, that procedure should be followed prior to the making of any application for judicial review. Public bodies which are susceptible to judicial review include government departments, district councils, education and library boards, health and social services trusts, the Housing Executive, lower courts and tribunals (including coroners) and the police. Pieces of subordinate legislation (eg Rules, Regulations, Orders in Council and even Acts of the Northern Ireland Assembly) can also be judicially reviewed if there is cause to believe that they were not properly authorised, but Acts of the Westminster Parliament can be subjected to judicial review only where it can be argued that they conflict with EU law or with the ECHR. Judicial review is concerned with the procedures employed by a public body when reaching its decision and not with the merits of the decision itself, unless the decision is particularly outrageous, absurd or disproportionate. It is not a way of challenging an unwelcome decision, unless it can be argued that an unfair or unlawful procedure has been employed in reaching it. The grounds on which a challenge may be made include the following: — that the body has wrongly interpreted the relevant law; — that the body has taken into account irrelevant factors or ignored relevant factors; — that the body has failed to pursue the policy and objectives of the legislation in question; — that the body has unduly restricted its discretionary powers or followed an unfair or biased procedure;

Victims’ Rights

23

— that the body has taken a decision which no reasonable body in its position could have taken; — that the body has failed to act compatibly with the rights conferred by the ECHR; and — that the body has acted disproportionately when dealing with a certain problem (ie it has used a sledgehammer to crack a nut). In some instances a decision can be subjected to judicial review if the reasons behind it have not been conveyed to the affected persons, or have not been conveyed quickly enough. An application for judicial review may be sought by a person or body who has ‘a sufficient interest’ in the matter and who seeks the permission of the court promptly (and in any event within three months of the making of the challenged decision). If the matter is very general (eg a decision on taxation policy) even an ordinary taxpayer may have a sufficient interest to bring an application. The remedies which the court can grant to a successful applicant include certiorari (an order which quashes the public body’s decision), mandamus (an order which compels the public body to comply with a duty), declaration (an order which declares what the law is or what the rights of the parties are), and prohibition (an order which prevents the public body from proceeding with an unlawful decision). These remedies are available at the court’s discretion and the court may, exceptionally, refuse to grant any of them if it believes that the applicant’s conduct merits this or if it is in the interests of good administration to do so. For a detailed account of the law on judicial review in Northern Ireland see Gordon Anthony, Judicial Review in Northern Ireland (2nd edn, 2014).

The Ombudsman In Northern Ireland the term ‘Ombudsman’ covers two distinct offices, although they are traditionally held by the same person. There is, first, the office of Assembly Ombudsman and, second, that of Commissioner for Complaints. The relevant legislation is, respectively, the Ombudsman (NI) Order 1996 and the Commissioner for Complaints (NI) Order 1996, as amended.

The Assembly Ombudsman The function of the Assembly Ombudsman is to investigate complaints of maladministration made against Northern Ireland government departments and some other bodies. The complaint must be made by a person who feels that he or she has suffered injustice as a result of the maladministration and the complaint should be made within 12 months of the action or inaction in question.

24

Brice Dickson

‘Maladministration’ is not defined in the relevant legislation but it covers matters such as delay in responding to letters, incompetence in dealing with queries, perversity or arbitrariness in the taking of decisions and discrimination on irrelevant grounds. The complaint should be made to the Ombudsman via a Member of the Legislative Assembly (MLA), who has discretion whether or not to refer the complaint to the Ombudsman. The MLA may decide to deal with the matter personally instead. If a person writes directly to the Ombudsman, the Ombudsman will, where the complaint merits further investigation, ask the complainant to refer the matter back through an MLA. The Ombudsman is completely independent of government departments and the service provided is free of charge. He or she has the right to have full access to all files and records. The purpose of his or her investigation is to ascertain whether or not there has been maladministration: the Ombudsman has no jurisdiction to investigate the merits of decisions reached without maladministration. The Ombudsman does not usually investigate complaints where there is an alternative remedy available, particularly in a tribunal or by way of judicial review, although if an individual goes to a tribunal and still believes that the injustice remains unremedied, the Ombudsman may then investigate the complaint. Once a preliminary investigation has been completed, a decision is taken on whether a more in-depth investigation is required. When the investigative work finally comes to an end the Ombudsman sends a report to the complainant, the referring MLA and the relevant government department. If the Ombudsman upholds the complaint, he or she will try to effect a fair settlement, perhaps by securing appropriate redress for the complainant, such as an apology or the payment of compensation. In some cases, as a result of an Ombudsman investigation the department concerned will change its procedures. The Ombudsman cannot, however, compel the government department to provide any redress to a complainant. The Ombudsman can also investigate complaints about personnel matters in the Northern Ireland Civil Service. His or her officials also investigate, on behalf of the Assembly, complaints of misconduct against MLAs.

The Commissioner for Complaints The second office held by the Northern Ireland Ombudsman is that of Commissioner for Complaints. In that capacity he or she investigates complaints of maladministration made by an aggrieved individual against local and public bodies in Northern Ireland. These bodies include district councils, education and library boards, health and social services trusts, the Housing Executive (although its own internal complaints procedure should be resorted to first), the Labour Relations Agency, and the Equality Commission. The Commissioner can also look at complaints against health service providers, including complaints about clinical judgments made by doctors, dentists and opticians.

Victims’ Rights

25

There is direct access to the Commissioner for Complaints, whose services are again both free and independent, but the complaint usually needs to be made, at the latest, within 12 months. The Commissioner cannot question the merits of a decision taken without maladministration, nor will he or she usually investigate a complaint which could be the subject of legal proceedings or an alternative investigatory procedure. Certain other matters fall outside his or her jurisdiction, including the commencement or conduct of civil or criminal proceedings. If the Commissioner’s investigations disclose that there has been maladministration, he or she will try to secure a settlement, such as an apology or the payment of compensation. If this is unsuccessful, the complainant may apply to a county court for compensation. The Attorney General may also, at the request of the Commissioner, seek an injunction or a declaration from the High Court to restrain a public body from persistent maladministration. The contact details for the Commissioner for Complaints are the same as for the Assembly Ombudsman (see ‘Useful Contacts’ at the end of this chapter). Individuals dealing with a public body which is operating under the provisions of a ‘Charter’ should note that the body may have its own internal complaints mechanism. This should be pursued before seeking help from the Commissioner for Complaints.

The UK Ombudsman Complaints against Westminster government departments and some other public bodies are within the jurisdiction of the UK Parliamentary Commissioner, whose jurisdiction therefore includes the Northern Ireland Office, the Northern Ireland Courts and Tribunals Service, HM Revenue and Customs, the Ministry of Defence and the NIHRC.

The Commissioner for Children and Young People The Commissioner for Children and Young People (NI) Order 2003 provides for the creation of a Northern Ireland Commissioner for Children and Young People (NICCY). The Commissioner has extensive powers to promote and protect the rights of children, especially those set out in the UN Convention on the Rights of the Child 1989. These include the power to review complaint mechanisms, to support cases in court and to investigate alleged abuses of rights, although not in situations where the Commissioner has already looked more generally at the issues raised by a specific case or where some other statutory body has conducted an investigation. Unfortunately, in 2009 the NICCY could not persuade the Court of Appeal of Northern Ireland that the UK government had failed to reform the law on corporal punishment of children in a way which complied with the ECHR (Re NICCY ’s Application, 2009).

26

Brice Dickson

The Commissioner for Older People In 2011 the Northern Ireland Assembly created the statutory post of Commissioner for Older People, whose principal goal is to safeguard and promote the interests of older people. The category is generally defined as people aged 60 or over, but in relation to some matters the Commissioner is also permitted to work on behalf of those over 50. The Commissioner can conduct research, undertake educational activities, assist older people when they are making complaints and in some situations investigate complaints on behalf of older people. In carrying out his or her functions the Commissioner must have regard to the UN Principles for Older Persons, agreed by the UN’s General Assembly in 1991.

Assistance from Other Bodies As explained in Chapter 12, the Equality Commission for Northern Ireland will sometimes grant assistance to individuals who are seeking help with a claim based on discrimination. Likewise the NIHRC has the power to grant assistance to individuals (not organisations) who are taking legal proceedings concerning human rights. But the resources of both of these bodies are much less extensive than those of the Northern Ireland Legal Services Commission, which oversees the grant of legal aid (see page 15), so very few applicants actually receive assistance. The NIHRC can also take human rights cases in its own name. In 2013 the Court of Appeal held in favour of the Commission when it challenged the law which prohibited unmarried couples and civil partners from adopting a child (Re the NIHRC’s Application, 2013). In 2002 the House of Lords ruled that the Commission could also apply to intervene in other people’s court cases in order to bring a human rights perspective to the issues in question (Re the NIHRC’s Application, 2002).

Victims and Survivors of the Troubles The Commission for Victims and Survivors was established in 2008 under the Commission for Victims and Survivors Act (NI) 2008, which amended the Victims and Survivors (NI) Order 2006 so as to allow more than one Commissioner to be appointed (though today there is again only one). The Commission’s duties are to promote awareness of the interests of victims and survivors, to keep under review the adequacy and effectiveness of law, practice and services relating to those interests, and to provide advice about, a platform for, and a forum for consultation

Victims’ Rights

27

with victims and survivors. It does not have the power or resources to help victims and survivors with their court cases, but it can support their campaigns for better recognition and a high quality of service provision. The Office of the First Minister and Deputy First Minister also works on victims’ issues. In 2009 it issued a Strategy for Victims and Survivors and it has since set up the Victims and Survivors Service, which works directly with individuals and with other support organisations to assist in the resilience, recovery, and wellbeing of all victims and survivors of the troubles. It seeks to ensure that support is provided to victims in a coordinated way. Northern Ireland does not have a body which is comprehensively examining ‘the past’. Many ideas have been suggested for how to do so, but neither the UK government nor the Northern Ireland Executive has yet decided to back any of them. Since 2005 the Police Service’s Historical Enquiries Team (HET) has been working its way through more than 3,500 unresolved killings which occurred between 1968 and 1998, aiming to provide more information to the families of the victims and searching for new evidential leads. To date, four men have been convicted of murder on the back of HET-initiated investigations. The Office of the Police Ombudsman has also reported on several ‘legacy complaints’ against the police and, as noted earlier, many ‘legacy inquests’ remain to be held. The Independent Commission for the Location of Victims’ Remains is still working on identifying the burial sites of a number of individuals who ‘disappeared’ during the conflict. Calls for public inquiries into some notorious incidents also continue to be made, notably into the Omagh bomb of 1998, the killing of Pat Finucane in 1989 and the killing over the course of three days in August 1971 of 11 people by British soldiers in Ballymurphy, West Belfast. In 2013 Amnesty International issued a report entitled Northern Ireland: Time to Deal with the Past. This argues for a comprehensive process to be set up to review the conflict as a whole, to establish the truth about outstanding human rights violations and to determine responsibility for those violations. At the end of 2013 talks chaired by Richard Haass did not manage to produce an agreement between all participating political parties, but the final draft document gives an indication of what the main contours of such an agreement might eventually be.

Useful Contacts Commissioner for Complaints Progressive House 33 Wellington Place Belfast BT1 6HN tel: 028 9023 3821 www.ni-ombudsman.org.uk

28

Brice Dickson

Commissioner for Older People Equality House 7–9 Shaftesbury Square Belfast BT2 7DP tel: 028 9089 0892 www.copni.org Compensation Services Millennium House, 6th floor 25 Great Victoria Street Belfast BT2 7AQ tel: 0300 200 7887 www.dojni.gov.uk/index/compensation-services.htm Criminal Cases Review Commission Alpha Tower Suffolk Street Queensway Birmingham B1 1TT tel: 0121 623 1800 www.justice.gov.uk/about/criminal-cases-review-commission Enforcement of Judgments Office Laganside House 23–27 Oxford Street Belfast BT1 3LA tel: 028 9024 5081 www.courtsni.gov.uk/en-gb/services/ejo/Pages/default.aspx Equality Commission for Northern Ireland Equality House 7–9 Shaftesbury Square Belfast BT2 7DP tel: 028 90 500 600 textphone: 028 90 500 589 www.equalityni.org European Commission Office in Northern Ireland 74–76 Dublin Road Belfast BT2 7HP tel: 028 9024 0708 ec.europa.eu/unitedkingdom/about_us/office_in_northern_ireland/index_ en.htm

Victims’ Rights Northern Ireland Assembly Ombudsman Progressive House 33 Wellington Place Belfast BT1 6HN tel: 028 9023 3821 www.ni-ombudsman.org.uk Northern Ireland Commissioner for Children and Young People Equality House 7–9 Shaftesbury Square Belfast BT2 7DP tel: 028 9031 1616 email: [email protected] www.niccy.org Northern Ireland Courts and Tribunals Service Oxford Street Belfast BT1 3LL tel: 0300 200 7812 www.courtsni.gov.uk Northern Ireland Human Rights Commission Temple Court 39 North Street Belfast BT1 1NA tel: 028 9024 3987 www.nihrc.org UK Parliamentary Commissioner for Administration Church House Great Smith Street London SW1P 3BW tel: 020 7276 3000 www.ombudsman.org.uk Victims and Survivors Service Millennium House, 1st floor 25 Great Victoria Street Belfast BT2 7AQ tel: 028 9027 9100 email: [email protected] www.victimsservice.org

29

30

Brice Dickson

Victims and Survivors Service (outreach office) 5 Ballygawley Road Dungannon BT70 1TU tel: 028 9027 9100 www.victimsservice.org Victim Support Northern Ireland Annsgate House 70–74 Ann Street Belfast BT1 4EH tel: 028 9024 4039 www.victimsupportni.co.uk

3 Powers of the Police and Army BRICE DICKSON

This chapter sets out those powers of the Police Service of Northern Ireland (PSNI), and of the army, which people in Northern Ireland are most likely to encounter in everyday life. The specific topic of police questioning is dealt with in Chapter 4 and the system for dealing with complaints against the police is explained in Chapter 5. The system for complaining about actions of the army is described at the end of this chapter. The army is no longer regularly deployed on the streets of Northern Ireland but can be called upon by the Chief Constable to assist in the maintenance of order when necessary. After explaining the different sources for ‘ordinary’ and anti-terrorism law in Northern Ireland, the chapter continues by describing the relevant police powers on each topic as they exist under the ordinary law and then describing them as they exist under the antiterrorism laws.

Ordinary Law Much of the ‘ordinary’ law on police powers is contained in the Police and Criminal Evidence (NI) Order 1989 (the PACE Order). This Order is similar in many respects to the Police and Criminal Evidence Act 1984, which governs the position in England and Wales. Books on that Act are therefore relevant to the law in Northern Ireland as well. Both pieces of legislation have been amended several times since they were first enacted. The 1989 PACE Order, for example, was substantially changed by the Police and Criminal Evidence (Amendment) (NI) Order 2007.

Codes of Practice Under articles 60, 60A and 65 of the PACE Order, several codes of practice have been issued indicating how the powers conferred by the Order should be exercised. Codes A to G were published in book form by the Northern Ireland Office in 2007, but several amendments have been made since then. Updated copies of

32

Brice Dickson

all the codes are not easily accessible on the internet, but they are supposed to be readily available for consultation in all police stations in Northern Ireland. The codes in question are as follows: — Code A: Code of practice for the exercise by police officers of statutory powers of stop and search; — Code B: Code of practice for searches of premises by police officers and the seizure of property found by police officers on persons or premises; — Code C: Code of practice for the detention, treatment and questioning of persons by police officers; — Code D: Code of practice for the identification of persons by police officers; — Code E: Code of practice on audio recording of interviews with suspects; — Code F: Code of practice on visual recording with sound of interviews with suspects; and — Code G: Code of practice for the statutory power of arrest by police officers. The codes issued for Northern Ireland are almost identical to those issued for England and Wales. They are not themselves pieces of legislation—and are not therefore found in official collections of legislation. A breach of the codes will not automatically render the police liable to criminal or civil proceedings (art 66). The only available penalty will be disciplinary proceedings. A court can, however, ‘take account’ of a code’s provisions when hearing any criminal or civil case, so it might refuse to admit a piece of evidence if it considers that it was obtained in breach of a code. For the most part the codes simply repeat in clearer language what is provided for in the PACE Order, but occasionally they are more detailed, especially in their ‘Notes for Guidance’ sections. For instance, Code B (on searches of premises) states that searches must be conducted with due consideration for the property and privacy of the occupier of the premises searched and with no more disturbance than necessary (para 6.10). Likewise, Code C (on the treatment of detainees) provides in Annex A (on intimate and strip searches) that a strip search may take place only if it is considered necessary to remove an article which a detainee would not be allowed to keep, and the officer reasonably considers the detainee might have concealed such an article (para 10). There are also special provisions dealing with the treatment in custody of mentally disordered and otherwise mentally vulnerable people (Annex E to Code C). If a national of another country is detained Code C states that he or she must be informed that they have the right to communicate at any time with the appropriate High Commission, Embassy or Consulate (para 7.1).

Anti-terrorism Law The position regarding police powers in relation to terrorism is now mainly governed by Acts which apply throughout the UK, such as the Terrorism Acts 2000 and

Powers of the Police and Army

33

2006, the Anti-terrorism, Crime and Security Act 2001, the Counter-Terrorism Act 2008 and the Terrorism Prevention and Investigation Measures Act 2011. As well as creating various offences with which suspected terrorists can be charged, and conferring additional powers on the police, these Acts regulate matters such as the freezing of assets, the security of pathogens, toxins, nuclear installations and airports and the retention of communications data. The 2011 Act replaced the Prevention of Terrorism Act 2005, which had provided for the issue of ‘control orders’ in relation to suspected terrorists. The Justice and Security (NI) Act 2007 adds some anti-terrorist provisions which apply only in Northern Ireland, but it allows the Secretary of State to repeal these if he or she obtains parliamentary approval. With one exception, and unlike earlier anti-terrorism legislation, the current Acts do not expire unless renewed after a set period, but each year the Home Secretary is required to lay before Parliament a report on the workings of parts of the legislation. At present the persons appointed to prepare these reports are David Anderson QC for the UK-wide legislation and David Seymour for the 2007 Act which applies only in Northern Ireland. The exception relates to sections 1 to 9 of the Justice and Security (NI) Act 2007 (see page 10), which provide for non-jury courts to try terrorist cases in Northern Ireland: these provisions expire unless renewed every two years (which they have been to date). Some provisions in the Acts—such as those in the Counter-Terrorism Act 2008 conferring powers on police officers throughout the UK to question suspects even after they have been charged with an offence (ss 22–27)—have not yet been brought into force.

Codes of Practice Codes of practice have also been issued in relation to the use of anti-terrorism legislation. There is also one that has been issued under the PACE Order to govern situations where PSNI officers arrest someone who is reasonably suspected of being a terrorist. The codes are: — PACE Code H: Code of practice for the detention, treatment and questioning of persons by police officers under section 41 of, and Schedule 8 to, the Terrorism Act 2000 (in force from 22 November 2012); — Code of practice (NI) for the exercise of stop and search powers under sections 43 and 43A of the Terrorism Act 2000, and the authorisation and exercise of stop and search powers relating to section 47A of, and Schedule 6B to, the Terrorism Act 2000 (in force from 10 July 2012); — Code of practice (NI) on the video recording with sound of interviews of persons detained under the Terrorism Act 2000 (amended version in force from 18 April 2003); — Code of practice for examining officers under the Terrorism Act 2000 (amended version in force from 2 July 2009); and — Code of practice for the exercise of powers in the Justice and Security (NI) Act 2007 (in force from 15 May 2013).

34

Brice Dickson

Generally speaking the codes of practice contain fewer safeguards for detainees who are suspected terrorists than are found in the equivalent PACE codes. For instance, terrorist suspects need not be told the identity of their interrogators, nor can they obtain a copy of their custody record.

Statistics The website of the PSNI regularly publishes statistics on the security situation in Northern Ireland. These include figures on the number of arrests under section 41 of the Terrorism Act 2000. The Northern Ireland Office, albeit somewhat belatedly, publishes annual statistics on the terrorism legislation in Northern Ireland. These reveal, for example, the number of premises searched, persons and vehicles stopped and searched, persons detained (and for how long), requests for access to a solicitor and to have someone informed about a detention, detainees subsequently charged, cordons designated, requisition orders issued and compensation payments made. But statistics on the operation of the Justice and Security (NI) Act 2007 are not published other than in the annual reports of the independent reviewer. More could certainly be done to present a clearer picture of the operation of the anti-terrorism measures in Northern Ireland.

The Definition of Terrorism ‘Terrorism’ is defined in section 1 of the Terrorism Act 2000, as amended by the Terrorism Act 2006. It means the use or threat of action where three conditions are satisfied. Firstly, the action must: — — — —

involve serious violence against a person; involve serious damage to property; endanger a person’s life, other than that of the person committing the action; create a serious risk to the health or safety of the public or a section of the public; or — be designed seriously to interfere with or seriously to disrupt an electronic system. Secondly, the use or threat must be made for the purpose of advancing a political, religious or ideological cause. Thirdly, the use or threat must be designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public (unless firearms or explosives are involved, in which case this third condition does not need to be satisfied). The offences in the Terrorism Acts 2000 and 2006 which require people convicted of them to be labelled as terrorists include: — belonging to, or professing to belong to, a proscribed organisation; — inviting support for, or arranging or addressing a meeting to further the activities of, a proscribed organisation;

Powers of the Police and Army — — — — — — — — — —

35

taking any action for the benefit of a proscribed organisation; fundraising or using any property for the purposes of terrorism; laundering terrorist property; providing weapons training; directing a terrorist organisation; possessing articles or collecting information for a purpose connected with terrorism; inciting terrorism overseas; encouraging terrorism; distributing terrorist publications; and preparing terrorist acts.

The definition of terrorism is not affected by the Justice and Security (NI) Act 2007. By section 35 the Chief Constable of the PSNI has to ensure that, to the extent that it is reasonably practicable, a record is made of each time a police officer exercises one of the powers to stop, enter, arrest or search conferred by that Act.

The Power to Stop and Question People Under Ordinary Law Contrary to popular belief, the general rule is that the police do not have the right to demand that people stop and answer questions. This is true not only of pedestrians but also of people in cars or any other form of transport (but see page 36). The police can, of course, attempt to stop and question people, and many people will be content to comply with the police’s request and will readily answer questions, but there is no legal obligation to stop when asked to do so or to answer questions put by a police officer. The PACE Order confers powers on the police to stop people for the purpose of searching them (these are dealt with below), but it does not remove a person’s right not to be stopped for questioning. In order to be able to insist upon asking a person questions, the police must first arrest that person. During the period of detention following an arrest the police can ask questions but the person arrested is still under no legal duty to reply. In fact, when questioned at any time it is very often sensible to remain silent until a solicitor is present. As the then Lord Chief Justice for England and Wales put it in Rice v Connolly (1966): ‘the whole basis of the common law is the right of the individual to refuse to answer questions put to him by a person in authority’. However, as explained more fully in Chapter 4 of this book, one of the consequences of the Criminal Evidence (NI) Order 1988 is that the silence of a detained person may later constitute corroborative evidence that that person is guilty of an offence. As a result of sections 34–38 of the Criminal Justice and Public Order Act 1994, the law on this point in England and Wales is now the same as in Northern Ireland.

36

Brice Dickson

It is a crime to impede, without lawful authority or reasonable excuse, the apprehension or prosecution of someone whom one believes to be guilty of a serious offence (s 4 of the Criminal Law Act (NI) 1967) and it is also an offence to fail to give the police information about a serious offence committed by some other person (s 5 of that Act). The latter failure is an offence in England and Wales only if it is accompanied by acceptance of payment for keeping quiet about the offence. In both jurisdictions it is also a crime to obstruct the police in the execution of their duty (for Northern Ireland, see s 66 of the Police (NI) Act 1998). There are a number of important exceptions to the general rule that the police cannot lawfully stop people arbitrarily. These mainly relate to road traffic situations and terrorism. The law on road traffic in Northern Ireland is virtually identical to that in England and Wales: it permits a police officer or traffic warden to control traffic and, provided the officer is in uniform, to require drivers to stop their vehicles (art 180 of the Road Traffic (NI) Order 1981). The relevant powers in the context of terrorism are explained in the next section.

The Power to Stop and Question People Under Anti-terrorism Law The chief exception to the general rule in the context of alleged terrorist incidents is contained in section 21 of the Justice and Security (NI) 2007. According to this, any police officer or soldier may stop any person for so long as is necessary to question him or her about his or her identity and movements, about a recent explosion or another recent incident endangering life, or about a person killed or injured in any such explosion or incident. The power is often used in conjunction with one of the powers to stop and search (see below). If a person fails to stop when required to do so, or fails to answer a question to the best of his or her ability, he or she may be fined in a magistrates’ court up to £5,000. Given that the compulsion to answer the questions exists under section 21 even if one thereby has to incriminate oneself, there must be a doubt whether it is compatible with the presumption of innocence protected by Article 6(2) of the European Convention on Human Rights (ECHR), but no categorical ruling has yet been given on that question by any court. However, in 2013 the Court of Appeal of Northern Ireland did hold the section 21 power to stop and question to be incompatible with the right to a private life guaranteed by Article 8 of the ECHR because in the absence of a code of practice the provisions of section 21 did not have the degree of clarity that the ECHR requires when it states that interferences with rights must be ‘in accordance with law’ (Re Fox’s and Canning’s Applications, 2013). Almost immediately a code of practice was put in place to produce the required clarity for this and related powers in the 2007 Act (see page 33 above). The code specifies, amongst other things, that the power to stop

Powers of the Police and Army

37

and question should not be used on a purely random basis and, where practicable, an individual should be informed at the outset of the basis for the stop and question (para 6.3). It also states that if a person’s identity is already known to the police officers who are conducting the stop and question, that person must not be asked to confirm their identity and may only be questioned in respect of their movements (para 6.6). There has been no authoritative ruling as to what exactly constitutes a ‘stop’ within section 21. Knocking on a person’s door and putting questions to the person who opens it may not qualify, but temporarily preventing someone from moving from his or her position in a queue or at a counter would probably be enough. Approaching someone who is standing on the street would almost certainly constitute a ‘stop’ in this context. The power in section 21 can be used to stop pedestrians but it is most frequently used at vehicle checkpoints (VCPs). There is no legal obligation to show a driving licence at a VCP, but doing so is an easy way of proving identity. There are doubts about other aspects of section 21 too. No-one knows for sure, for instance, whether in law the ‘identity’ of a person includes his or her date of birth and address. The answer may depend on whether or not the person has a common name. The section also gives no indication as to how much detail a person must provide about his or her movements. But the duty to answer to the best of one’s ability probably means that one must be as detailed as one can be. The general locality a person is coming from and going to must be disclosed, but it would probably be unreasonable to have to give the names of the people just visited or about to be visited. Nor is the meaning of ‘recent’ in section 21 clear. The questions asked do not have to be related to acts of ‘terrorism’, so ‘any other incident endangering life’ could refer, for example, to a fire or a car accident. There is no obligation to answer questions relating to one’s occupation, family or friends. Unlike its predecessors, the Terrorism Act 2000 did not originally contain a provision making it an offence to withhold information in one’s possession about terrorism. But a new section 38B was inserted by the Anti-terrorism, Crime and Security Act 2001. In Northern Ireland this criminalises a failure to disclose to the police or army (unless one has a reasonable excuse for not doing so) information one has which one knows or believes might be of material assistance in preventing the commission by another person of an act of terrorism or in securing the apprehension, prosecution or conviction of a terrorist. The maximum penalty for the crime is five years in prison and an unlimited fine.

Port and Border Controls Quite apart from the powers vested in immigration officers to question people who arrive in the UK from abroad (although the Republic of Ireland does not count as ‘abroad’ for this purpose), section 53 of the Terrorism Act 2000, read together with Schedule 7, permits examining officers at ports and airports, and in

38

Brice Dickson

the border area in Northern Ireland, to question people in order to determine if they are terrorists. The officers do not need to have any initial suspicions in that regard. The Secretary of State may also issue orders requiring people to complete and produce cards when embarking or disembarking at a port or airport anywhere in the UK. Several such orders are currently in force. A person questioned in these circumstances must give the examining officer any information in his or her possession which the officer requests. He or she can be detained for up to nine hours to allow the questioning to be completed and during that time can be photographed, but not fingerprinted. Any interviews held will not be audio-recorded or video-recorded unless they take place at a police station. The person detained has the same rights as other persons detained under the Terrorism Act (see page 56 below). In a recent high-profile case David Miranda was stopped while in transit at Heathrow airport and was required, on fear of arrest, to reveal the passwords to electronic devices he was carrying. The police correctly suspected that the devices contained information which had been given to Mr Miranda’s journalist partner by Edward Snowden, the former CIA employee. In a judicial review of the police’s actions the High Court held that they were justified because of ‘very pressing’ interests of national security (Miranda v Home Secretary, 2014). An appeal is still pending in this case in the Court of Appeal of England and Wales.

The Power to Stop and Search People Under Ordinary Law The police do not possess a general common law power to stop and search anyone at will. A person may, of course, consent to being stopped and searched, but if consent is withdrawn the search must cease immediately. The consent given may also be limited, for instance, to a search of a person’s pockets or handbag. In this case a more extensive search will be an assault, for which compensation can be sought. The police do possess limited stop and search powers conferred by legislation, in particular by the PACE Order. For a useful list of other relevant legislation, see Annex A to the Code of Practice on this topic (Code A). As a rule, because it can be difficult to know whether the police are acting within their powers when conducting a search, it is better if the person being searched, rather than resisting the search and risking a prosecution for obstructing the police in the execution of their duty or for assault, submits to the search while informing the police that he or she is not consenting voluntarily. The police should be asked to name the exact power under which they are acting so that its terms can be checked later. Article 3 of the PACE Order empowers police officers to stop, detain and search any person if they have reasonable grounds for suspecting that they will find

Powers of the Police and Army

39

stolen or prohibited articles. An article is prohibited if it is an offensive weapon or something intended for use in a burglary or theft. Any such item may be seized and need not be returned. The power can be exercised only in a public place. People who are in a garden or yard connected with a dwelling cannot be searched unless the police have reasonable grounds for believing that those people do not reside in the dwelling and are not there with permission. Most of the searches conducted under this power tend to be searches relating to drugs. Within 12 months of the event, a person stopped, or the driver of a vehicle stopped, is entitled to a written statement concerning the stop and search (art 5(7) of the PACE Order). Code A (on powers of stop and search) allows police officers in Northern Ireland to record stop and search details electronically and to issue a receipt in place of a full record of the search at the point of contact. The receipt gives details as to how a full record can be obtained later.

Other Powers Article 23A of the Public Order (NI) Order 1987 permits a police officer of at least the rank of inspector, if he or she reasonably believes that activities may take place in any locality which are likely to involve the commission of offences and that it is expedient to prevent or control those activities, to authorise any constable in uniform, during a period of up to 24 hours, to require any person in that locality to remove any item which the constable reasonably believes that person is wearing wholly or mainly for the purpose of concealing his or her identity. Failure to remove the item is an offence punishable with up to a month in prison and a fine of £1,000. (See also Chapter 8.) Likewise, article 23B of the Public Order (NI) Order 1987 permits a police officer of at least the rank of inspector, if he or she reasonably believes that incidents involving serious violence may take place in any locality and that it is expedient to prevent or control their occurrence, or that people are carrying offensive weapons or dangerous instruments in any locality without good reason, to authorise any constable in uniform, during a period of up to 24 hours, to stop any pedestrian or vehicle and search the person or vehicle, or anything being carried, for offensive weapons or dangerous instruments. A dangerous instrument is defined as an instrument which has a blade or is sharply pointed. The constable does not need to have any suspicions in relation to the person or vehicle stopped. Again, failure to stop when asked to do so is an offence (although this time not one for which the culprit can be arrested), punishable with up to a month in prison and a fine of £1,000.

Intimate Searches An intimate search is defined as ‘a search which consists of the physical examination of a person’s body orifices’. It requires the written authorisation of a police

40

Brice Dickson

officer of at least the rank of superintendent, who must first have reasonable grounds for believing that an arrested person may have concealed on his or her body a ‘Class A’ drug or anything which could be used to cause injury while in custody. Class A drugs include heroin but not amphetamines or cannabis and they can be searched for only by a registered doctor or nurse and not at a police station. Other intimate searches should also be conducted by a doctor or nurse unless a police officer of at least the rank of superintendent considers that this is not practicable, in which case they must be carried out by a constable of the same sex as the person searched; these searches can be conducted at a police station. A written record must be kept by the custody officer of the parts of the body that have been searched, and the reason for the search. Anything found during an intimate search may be retained only in the circumstances outlined below in relation to clothes and personal effects.

Safeguards for People Being Searched Before a search is begun, a constable must prove that he or she is indeed a police officer (by displaying a card or giving his or her police number and station). The constable must also indicate the purpose of the proposed search, the reasons for making it and the fact that a written record will be made available to the person if requested within the next year. Under article 5 of the PACE Order a record must be made of every search, even if this is not specifically requested. The record must identify: the police officer carrying out the search and describe the person (or vehicle) searched; the object of and grounds for the search; the date, time and place of the search; whether anything was found and if so what; and whether any injury or damage appears to have resulted from the search. During the search a person cannot be required to remove any item of clothing in public, except an outer coat, jacket, headgear and gloves. Strip searching is permitted at police stations in exceptional circumstances (see page 32). A person cannot be detained for longer than is reasonably required for the search to be carried out. The duty to make a written record and the prohibition on requiring clothes to be removed do not apply to searches following an arrest, although an arrested person can be searched only if the custody officer at a police station considers it necessary in order to permit a record of the person’s possessions to be taken. The search must be conducted by an officer of the same sex as the person searched and special conditions apply to ‘intimate’ searches (see above). In any event, after a person has been arrested and taken to a police station, the station’s custody officer must record everything which the person is carrying. Any of these things may be retained by the custody officer provided reasons are given, although clothes and personal effects may be seized only if the officer believes that the arrested person may use them to inflict injury, damage property, interfere with evidence or assist with an escape, or if there are reasonable grounds for believing that the items may be evidence relating to an offence.

Powers of the Police and Army

41

If the police act in a high-handed fashion during a search, or in breach of the powers conferred upon them, the person searched should lodge a complaint (see Chapter 5) or talk to a legal adviser about bringing a civil action for compensation for the tort of assault or for the breach of the right to a private life (see Chapter 2).

The Effect of Unlawful Searches If the police uncover evidence relating to a crime during the course of an unlawful search, that evidence is still admissible in a court of law but a civil action against the police for compensation can be initiated. In R v Khan (1996) the House of Lords held that evidence obtained through a surveillance device illegally placed on private property used by the defendant was nevertheless admissible in court against him. When this case went to the European Court of Human Rights (ECtHR) the judges held that there had been a breach of Article 8 (the right to respect for one’s private life and home) but not of Article 6 (the right to a fair trial): Khan v UK (2000). The Regulation of Investigatory Powers Act 2000 now provides statutory authority for surveillance in some situations such as this, and in 2010 a code of practice was issued under that Act to provide guidance on the use of informers (known as ‘covert human intelligence sources’, or CHISs). This appears to bring UK law into line with the ECHR.

The Power to Stop and Search People Under Anti-terrorism Law Section 43 of the Terrorism Act 2000 allows a police officer anywhere in the UK (but not a soldier) to stop and search anyone whom he or she reasonably suspects to be a terrorist, in order to discover whether that person has in his or her possession anything which may constitute evidence that he or she is a terrorist. There must still be independent grounds for any subsequent arrest besides whatever is found during the course of such a search. People who have already been arrested under section 41 of the Terrorism Act 2000 (see page 51) may also be searched (s 43(2)). In both of these situations the search does not need to be carried out by a person of the same sex as the person searched and anything found which constitutes evidence of terrorism can be seized and retained. Under the now repealed section 44 of the Terrorism Act 2000 a police officer in uniform anywhere in the UK (but not a soldier) was able to stop a person at a specified place and search that person for articles which could be used in connection with terrorism, even if there were no grounds for suspecting the presence of such articles on that particular person. In Northern Ireland the use of this power could be authorised, for up to 28 days, by an assistant chief constable, so long as

42

Brice Dickson

he or she considered this to be expedient for the prevention of acts of terrorism. The Secretary of State’s approval of the authorisation had to be sought too, but if this was refused it did not affect the legality of anything done up to that point. In R (Gillan) v Commissioner of Police for the Metropolis (2006) the House of Lords upheld the compatibility of the section 44 stop and search power with the ECHR, but the applicants then took their case to the ECtHR in Strasbourg and won (Gillan and Quinton v UK, 2010). The ECtHR held that the power violated the right to a private life guaranteed by Article 8 of the Convention: it was not ‘in accordance with law’ because it was ‘neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse’ (para 87). In response to this decision the UK government announced that it was suspending the use of section 44 and in 2011, following a review of counter-terrorism laws, it decided to introduce new legislation. The Protection of Freedoms Act 2012 duly repealed sections 44–47 of the 2000 Act and inserted a new section 47A which provides that persons can be stopped and searched within a specified area if a senior police officer (in Northern Ireland this still has to be an assistant chief constable) gives an authorisation for this based on his or her reasonable suspicion that an act of terrorism will take place and his or her reasonable consideration (a) that the authorisation is necessary to prevent such an act, (b) that the specified area is no greater than is necessary and (c) that the duration of the authorisation is no longer than is necessary. As before, in Northern Ireland the assistant chief constable’s authorisation has to be approved within 48 hours by the Secretary of State if it is to remain valid, and the Secretary of State can also restrict the specified area or shorten the duration of the authorisation. On account of the ongoing threat from dissident republicans, an authorisation for the whole area of Northern Ireland is now issued and confirmed every two weeks, almost as a matter of routine. As noted above (page 33) a code of practice containing guidance on how the new stop and search power should be exercised was issued in 2012. In Northern Ireland there is an additional power to stop and search people in order to look specifically for explosives, firearms, ammunition or wireless apparatus. It is provided for in section 24 of, and Schedule 3 to, the Justice and Security (NI) Act 2007, as amended. A soldier on duty can stop and search anyone in a public place whether or not the soldier suspects that the person is in possession of these items, but a soldier may stop and search a person who is not in a public place only if the soldier reasonably suspects the person to be in unlawful possession of such items. A police officer, on the other hand, must always have such reasonable suspicion before stopping and searching anyone under this power. However, as with the power to stop and search under section 47A of the Terrorism Act 2000, described above, an assistant chief constable can authorise stops and searches for munitions and wireless apparatus in specified areas of Northern Ireland if he or she can fulfil the conditions set out for such authorisations (para 4A of Sch 3 to the 2007 Act). Again, given the present security circumstances, authorisations for use of the section 24 power are now routine for the whole of Northern Ireland. A code of practice for its use was issued in 2013 (see page 33).

Powers of the Police and Army

43

For the purposes of the section 24 power, a public place is defined as ‘a place to which for the time being members of the public have or are permitted to have access, whether on payment or otherwise’ (s 42 of the 2007 Act). This embraces places such as streets, shopping centres, pubs and hotels. A search cannot take place under this power for other items (see Carlisle v Chief Constable of the RUC, 1989), but if a person fails to stop when required to do so he or she may be fined up to £5,000 and if any of the items mentioned are found during a search they may be seized and retained for as long as is necessary in all the circumstances.

The Power to Stop and Search Vehicles Under Ordinary Law Curiously, the exact legal position regarding the stopping of vehicles (a term which for present purposes includes bicycles, vessels and aircraft) is unclear, even though the relevant powers are largely conferred by legislation—see article 180 of the Road Traffic (NI) Order 1981. In an English court case in 1982 (Steel v Goacher) it was held that the police had a power under the common law (ie not based on any statute) to stop traffic in order to prevent criminal activity. Failing to pull up when requested to do so by the police is, therefore, a more risk-laden thing for a driver to do than failing to stop walking when approached by the police, because the driver could be committing the offence of obstructing the police in the execution of their duties. The ordinary law already set out above (pages 38–41) in relation to searches of persons also applies to searches of vehicles. Thus, under article 3 of the PACE Order a car can be stopped and searched if the police have reasonable grounds for suspecting that they will find stolen or prohibited articles in it. If a vehicle is parked on land connected to a dwelling, it may not be searched unless the police have reasonable grounds for believing that it is there without the permission of a person who resides there. The rules about the police having to identify themselves before making the search also apply, and no police officer can stop a vehicle unless he or she is in uniform. Persons inside a vehicle can be searched only if the conditions mentioned at pages 38–41 above are satisfied. Whenever the police search an unattended vehicle they have to leave a notice stating that it has been searched, the date of the search and the identity of the searching officer (art 4(7)). The notice also has to indicate that a written record of the search can be requested within a year and that an application can be made for compensation for any damage caused. This duty does not apply to searches of vehicles at an airport, railway, dock or harbour, to searches of air cargo, or to searches conducted under the anti-terrorism laws (see below). The PACE Order contains a second power relating to vehicle checks, in article 6, but this relates to searches for wanted people rather than for stolen goods or

44

Brice Dickson

weapons. It authorises a police officer to stop and check vehicles to see if they are carrying people who are unlawfully at large or who are intending to commit, have committed, or are witnesses to an offence (except a road traffic offence). The vehicles to be searched can be chosen in accordance with any criterion, for example, the colour or age of the car, or the appearance of its occupants. The authorisation for a road check of this nature must come from a senior police officer and can last for no longer than seven days at a time.

The Power to Stop and Search Vehicles Under Anti-terrorism Law The reforms which were recently introduced for the stopping and searching of pedestrians (see pages 41–42) were also extended to the stopping and searching of vehicles. Thus, under section 43A of the Terrorism Act 2000, inserted by s 60 of the Protection of Freedoms Act 2012, if a police officer reasonably suspects that a vehicle is being used for the purposes of terrorism he or she may stop and search the vehicle and any person or thing in or on the vehicle to discover whether there is anything which may constitute evidence that the vehicle is being used for the purposes of terrorism. Anything found may be seized and retained if the police officer reasonably suspects that it may constitute such evidence. Moreover, provided the requisite authorisation has been given by an assistant chief constable under section 47A of the Terrorism Act 2000, vehicles can be stopped and searched in Northern Ireland, and the people and things in them also searched, even if the police officer in question has no reasonable suspicion that the vehicles are being used for the purposes of terrorism. Again, the search which takes place can only be for the purpose of discovering whether there is anything which may constitute evidence that the vehicle is being used for the purposes of terrorism, but anything found can be seized and retained if the police officer reasonably suspects that it constitutes such evidence. As mentioned earlier, the requisite authorisation is at present constantly in place throughout Northern Ireland. Section 24 of, and Schedule 3 to, the Justice and Security (NI) Act 2007, mentioned above in relation to the search of persons, also allow searches of vehicles to take place in order to look for munitions or wireless apparatus. If the proper authorisation is given these searches can take place even if there is no reasonable suspicion that the particular vehicle being searched is carrying munitions or wireless apparatus. The same conditions apply to these authorisations as apply to those issued under section 47A of the Terrorism Act 2000 (see page 42 and para 4A of Sch 3 to the Justice and Security (NI) Act 2007). Under section 26 of the 2007 Act the vehicle can be taken to any place for the search to be carried out and the person carrying it out may, if he or she reasonably believes this to be necessary in order to carry out the search, require a person who is in or on the

Powers of the Police and Army

45

vehicle to remain with it or to go to and remain at any place to which the vehicle has been taken to be searched. Anyone who fails to comply with an order to stop a vehicle under section 26 is guilty of an offence carrying a maximum penalty of six months’ imprisonment and a fine up to £5,000.

The Power to Enter and Search Premises Under Ordinary Law The police do not have a general power to enter and search premises in order to investigate criminal acts. Only in relation to some road traffic offences may they do so. Otherwise they may enter and search only if they have the permission of the occupier, if a breach of the peace is involved or if the requirements of the PACE Order are satisfied. The relevant provisions of the PACE Order are articles 10–25. They deal only with searches of ‘premises’, but this term is defined so as to include any place, such as a vehicle. It covers outdoor as well as indoor premises, movable and stationary premises, occupied and unoccupied premises, and public and private places. The power to search carries with it the power to enter in order to conduct the search.

Entry with a Warrant The police will normally have to obtain a search warrant from a lay magistrate in order to enter and search premises and the lay magistrate can grant a warrant only if he or she is satisfied that a serious offence has been committed and that there is material on the premises which is likely to be relevant to its investigation (art 10(1)). The lay magistrate must also be satisfied that it is not practicable for the police to obtain permission to enter the place, or that a search may be frustrated unless a police officer is allowed to enter immediately (art 10(3)). Applications for warrants must specify the reasons for the proposed search, the premises to be searched and the articles to be looked for. The warrants themselves must be just as specific. They can authorise entry on one occasion only (art 17(5)), which must occur within a month of the issue of the warrant (art 18(3)), and entry must be at a reasonable hour unless this would frustrate the search (art 18(4)). If the police wish to search for personal medical records, documents dealing with counselling or with assistance given by a voluntary organisation, journalistic material or confidential business information, they must obtain either a production order or a warrant, not from a lay magistrate but from a county court judge (art 11 and Sch 1). Before issuing such an order or warrant the judge must normally be satisfied that access to the material is in the public interest (para 2(c) of Sch 1). Otherwise similar preconditions apply to the issue of a warrant as in the case of an application to a lay magistrate. The only materials which are totally exempt from

46

Brice Dickson

search are those which are subject to legal privilege which in the main are communications between solicitors and their clients (art 12 of the PACE Order).

Entry without a Warrant Under articles 19 and 20 of the PACE Order, the only situations in which a police officer is able to enter and search premises without a warrant are the following: — where the officer wishes lawfully to arrest a person whom he or she reasonably suspects is present on the premises; — where the police wish to search premises occupied or controlled by a person who has been arrested for an indictable offence, because they have reasonable grounds for suspecting that the premises contain evidence relating to that or some other connected indictable offence; — where entry is necessary in order to prevent serious personal injury or serious property damage; — where entry is necessary in order to deal with or prevent a breach of the peace; or — where any statutory provision so permits, for example, the Food Safety (NI) Order 1991, article 33.

The Power to Seize Objects The police can seize and retain anything they are looking for during a lawful search. In addition, by virtue of article 21 of the PACE Order, an officer who is lawfully on any premises may seize anything found there (even if it is not being looked for) provided he or she has reasonable grounds for believing that it has been obtained as a result of an offence, or that it is evidence in relation to any offence, and that seizure is necessary in order to prevent it being concealed, lost, damaged, altered or destroyed. Even information accessible through a computer can be seized under this power. Whenever anything has been seized, a written record must be provided, if requested, to a person who was the occupier of the premises or who had custody or control of the thing immediately prior to the seizure. Access to items seized, even if only in order to photograph or copy them, must be permitted by the officer in charge of the investigation unless he or she has reasonable grounds for believing that this would prejudice criminal proceedings. Otherwise items seized may be retained by the police for as long as is necessary. Under section 1 of the Police (Property) Act 1897, which is still in force, a person can apply to a magistrates’ court for an order for the return of property to its owner. As explained above (page 41), anything seized during a search, whether lawful or unlawful, may be used in court as evidence of an offence. Judges have a discretion

Powers of the Police and Army

47

to exclude the evidence because of the adverse effect on the fairness of the proceedings (art 76 of the PACE Order), but the person searched can seek compensation for infringement of his or her rights only by taking action in the civil courts (see Chapter 2). He or she can also lodge a complaint against the police (see Chapter 5).

The Power to Enter and Search Premises Under Anti-terrorism Law Section 23 of the Justice and Security (NI) Act 2007 allows a police officer or soldier on duty in Northern Ireland to enter any premises if he or she considers this to be necessary in the course of operations for the preservation of the peace or the maintenance of order (and whether or not there is any suspicion of criminal activity at the time). If the premises are a building, a police officer can enter only if first given authorisation by a senior officer, unless it is not reasonably practicable to obtain this. Details of the entry must be recorded in writing and given to the owner or occupier of the building. By section 22(3) of the Justice and Security (NI) Act 2007 a soldier on duty may enter and search any premises in which he or she knows, or reasonably suspects, someone to be who is reasonably suspected of committing, having committed or being about to commit any offence. If that person is found, the soldier can arrest the person without a warrant and detain him or her for up to four hours. The predecessor of this statutory power was held by the ECtHR to be compatible with the ECHR (Murray (Margaret) v UK, 1993). Under section 25 of the same Act a soldier on duty who reasonably believes that a person is unlawfully detained in such circumstances that his or her life is in danger may, if authorised by an army officer, enter and search any premises for the purpose of ascertaining whether the person is detained there. As we have already seen in relation to searches of people and vehicles, under section 24 of the Justice and Security (NI) Act 2007 (together with Sch 3) a police officer or soldier may enter and search any premises specifically for the purpose of ascertaining whether there are any explosives, firearms, ammunition or wireless apparatus on the premises, but no entry of a dwelling can take place unless it has been authorised by an officer in the army or by a police officer of the rank of inspector or above and unless the person entering reasonably suspects that the dwelling unlawfully contains any of those items. The police or army may require any person who is in the place being searched to remain in a part of it for up to four hours, and that period can be extended by a further four hours if a police superintendent or army major reasonably believes that it is necessary to do so. Anyone knowingly failing to comply with this requirement runs the risk of two years’ imprisonment and an unlimited fine. When the police or army are searching premises for explosives, firearms, ammunition or wireless apparatus they can be

48

Brice Dickson

assisted by specially appointed civilians such as forensic scientists and photographers. Unless it is not reasonably practicable to do so, a written record has to be made of the search specifying the police or service number of the searching officer, the name of the apparent occupier of the premises, the address of the premises, the date and time of the search, any damage caused and any items seized during the search (para 6 of Sch 3 to the 2007 Act). The apparent occupier must be supplied at once or as soon as is practicable with a copy of this record (para 7 of Sch 3). Some UK-wide anti-terrorism powers in this context also apply in Northern Ireland. Under section 42 of the Terrorism Act 2000, a lay magistrate in Northern Ireland may, on the application of a police officer, issue a warrant in relation to specified premises if he or she is satisfied that there are reasonable grounds for suspecting that a person whom the officer reasonably suspects to be a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism is to be found there. Moreover, section 57 of the 2000 Act makes it an offence to have in one’s possession any article ‘in circumstances which give rise to a reasonable suspicion that [one’s] possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism’. The items most likely to be involved in this offence are everyday things which could be used in the making of a bomb, such as rubber gloves, adhesive tape, bell-pushes, coffee-grinders and kitchen scales. A power to search premises is expressly stated to include the power to search a container in those premises. It should also be noted that under section 58 of the same Act it is an offence to have in one’s possession, unless one has a lawful excuse, any information which is likely to be useful to a person committing or preparing an act of terrorism. The Counter-Terrorism Act 2008 inserted a new section 58A into the 2000 Act making it an offence to elicit information which is about a person who is or has been a soldier, a police officer or a member of the intelligence services and which is likely to be useful to a person committing or preparing an act of terrorism. The maximum penalty for the offences in sections 57, 58 and 58A is 10 years’ imprisonment and an unlimited fine.

The Power to Arrest Under Ordinary Law Part IV of the PACE Order (articles 26–34), as amended, governs the police’s ‘ordinary’ arrest powers. These used to be largely restricted to situations where a police officer reasonably suspected someone of an offence carrying a prison sentence of five years or more, but the new article 26, substituted by the Police and Criminal Evidence (Amendment) (NI) Order 2007, extended the powers. Article 26 now permits a police officer to arrest without a warrant anyone: — who is about to commit any offence; — who is committing any offence;

Powers of the Police and Army — — — —

49

whom he or she reasonably suspects is about to commit any offence; whom he or she reasonably suspects is committing any offence; who is guilty of any offence that has been committed; or whom he or she reasonably suspects is guilty of any offence which has been, or which the police officer reasonably suspects to have been, committed.

However, this power of summary arrest, as it is called, can be exercised only if the police officer has reasonable grounds for believing that it is necessary to arrest the person in question in order to: — enable the person’s name or address to be ascertained (if the officer does not otherwise know and cannot readily ascertain that name or address); — prevent the person from causing physical injury to him- or herself or anyone else, suffering physical injury, or causing loss of or damage to property; — prevent the person from committing an offence against public decency (if members of the public cannot reasonably be expected to avoid the person) or from causing an unlawful obstruction on a road; — allow the prompt and effective investigation of the conduct of the person in question; or — prevent any prosecution for the offence being hindered by the person’s disappearance. Moreover, the 2007 Order removed the provision in the 1989 Order which had allowed the police to arrest without a warrant any person who was reasonably suspected of attempting or conspiring to commit any of the listed offences, or of inciting, aiding, abetting, counselling or procuring their commission. Schedule 2 to the 1989 Order, as amended by Schedules 1 and 2 to the 2007 Order, preserves some pre-1989 powers to arrest without a warrant. These include the powers to arrest people who have escaped from prison, children or young people who are absent from a remand home or training school where they are required to be, people who are in possession of documents intended for use in the impersonation of voters at an election, and people in public places who are suffering from mental disorder and appear to be in immediate need of care or control. Code G of the codes of practice issued under article 65(a)(iii) of the Order sets out best practice regarding use of the arrest powers (see page 32 above).

Arrests with a Warrant The 1989 Order did not alter the pre-existing law whereby the police can arrest any person so long as a warrant for that purpose has been issued to the police by a magistrate. Under article 20(5) of the Magistrates’ Courts (NI) Order 1981, if a District Judge (Magistrates’ Courts) is satisfied that a person suspected of having committed a summary (ie relatively minor) offence cannot for any reason be served with a summons requiring him or her to appear at court, then the District

50

Brice Dickson

Judge may issue a warrant for the arrest of that person notwithstanding that a summons has not first been issued. Likewise, upon a complaint being made by the police in writing, and substantiated on oath, that a person is suspected of having committed an indictable (ie serious) offence, a magistrate may issue a warrant to arrest that person and bring him or her to the local magistrates’ court (s 10(3)(a) of the Justice (NI) Act 2002). Once a person has been dealt with by a court for the offence alleged in a warrant, the warrant ceases to be valid and cannot be used to justify a later arrest (Toye v Chief Constable of the RUC, 1991).

Using Force and Giving Reasons The 1989 Order states that in exercising any power under the Order, the police ‘may use reasonable force, if necessary’ (art 88). However, the use of unreasonable force, or of reasonable force in circumstances where it is not necessary, will not make an arrest unlawful. It will only make it possible for the arrested person to submit a claim for compensation for assault. Using force to effect what is in any event an unlawful arrest may lead to the police having to pay ‘exemplary’ damages to the victim, as in Carroll v Chief Constable of the RUC (1988). An arresting officer must also indicate to the person involved that an arrest is taking place and give a reason for it. This was made clear by the House of Lords in Christie v Leachinsky (1947) and is confirmed by article 30(3) of the PACE Order, which says that no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest. If it later turns out that the reason for the arrest was not a good one, the person arrested can claim compensation for the civil wrongs of ‘false imprisonment’ and, possibly, ‘malicious prosecution’. But if the police show that they had ‘reasonable and probable cause’ for acting as they did, for example, because the person arrested had confessed to the alleged crime, no compensation will be awarded (Cooke v Chief Constable of the RUC, 1989). An arrest is not unlawful if the person escapes from custody before it was reasonably practicable to give him or her the reason for the arrest (art 30(5)).

Arrest for Breach of the Peace There also exists a judge-made power to arrest someone for a breach of the peace (Albert v Lavin, 1981). To be more exact, there is a power of arrest: — where a breach of the peace is committed in the presence of the arresting officer; — where the arresting officer reasonably believes that a breach of the peace will be committed in the immediate future by the person arrested; or — where a breach of the peace has been committed and it is reasonably believed that a repetition is threatened.

Powers of the Police and Army

51

A breach of the peace was defined in R v Howell (1981) as an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done.

A person arrested for breach of the peace may be ‘bound over’ by a District Judge. This means that the person will not be further punished provided that he or she commits no further breach of the peace, or some other crime, within a stipulated period. A challenge to the compatibility of these breach of the peace rules with the ECHR was unsuccessful in Steel v UK (1998). The courts have also said that the police can arrest people who are not themselves threatening to commit a breach of the peace but whose conduct is likely to provoke others to do so. However, it is unlawful for the police to prevent people from attending a protest if there was no good reason for supposing that the protest would be a violent one (R (Laporte) v Chief Constable of Gloucestershire, 2006).

Citizen’s Arrests Anyone other than a police officer has the power to make what is popularly known as ‘a citizen’s arrest’, but the extent of this power is not as great as in the case of the police. It is now regulated by article 26A of the PACE Order, which was inserted by article 15 of the PACE (Amendment) (NI) Order 2007. It only permits the arrest of someone who is, or who is reasonably suspected of being, in the act of committing an indictable offence, or, where an indictable offence has already been committed, someone who is guilty of that offence or who is reasonably suspected of being guilty of it. It does not permit the arrest of someone who is about to commit an offence, and it does not allow an arrest for an offence which the person making the arrest reasonably believes has been committed but which in fact has not been. Even when the power does exist, it can be exercised only if it appears to the person making the arrest that it is not reasonably practicable for a police officer to make it instead and if he or she has reasonable grounds for believing that it is necessary to arrest the person to prevent him or her from causing physical injury to him- or herself or to someone else, suffering physical injury, causing loss of or damage to property, or making off before a police officer can assume responsibility for him or her.

The Power to Arrest Under Anti-terrorism Law The Arrest Powers of Police Officers The main anti-terrorist arrest power conferred on the police in Northern Ireland is the same as that applying in Great Britain. It is conferred by section 41 of the

52

Brice Dickson

Terrorism Act 2000. This provides that a constable may arrest without a warrant a person whom he or she reasonably suspects to be a terrorist. For this purpose, a ‘terrorist’ is defined by section 40 as a person who is, or has been, concerned in the commission, preparation or instigation of acts of terrorism or as a person who has committed an offence under a number of sections in the Terrorism Act or other Acts. ‘Terrorism’ itself, therefore, is not an offence, but persons reasonably suspected of being terrorists can be arrested. The government claims that this arrest power is necessary because it helps to prevent terrorism. The arrest powers in the PACE Order, including the one which authorises the arrest of any person reasonably suspected of being about to commit an indictable offence, are deemed inadequate in this context. It is clear, moreover, that, just as in the case of the PACE Order’s powers, a police officer can be said to have ‘reasonable suspicion’ for the purposes of section 41 if he or she is acting on information supplied and instructions issued by a superior police officer (see O’Hara v Chief Constable of the RUC, 1997). A challenge against this decision failed in the ECtHR (O’Hara v UK, 2001). If subsequent questioning—or the lack of it—shows that there were no real grounds for reasonably suspecting a connection with terrorism, an action in the civil courts for compensation for false imprisonment may succeed. It is a fact that, during the 10 years between 2001 and 2011, 71 per cent of all the persons arrested in Northern Ireland under section 41 of the Terrorism Act 2000 were later released without being charged with any offence, and by no means all of those who were charged were charged with a terrorist offence. This might mean that the arrest powers are not being used for the legitimate purpose of rounding up genuine suspects but for the illegitimate purpose of harassing people or fishing for snippets of incriminating evidence about people. Alternatively, it might mean that people who are arrested then supply no evidence which the police can rely upon to found a charge. The use of arrest powers just for the gathering of information is a contravention of Article 5(1)(c) of the ECHR, which states that arrest or detention must be for the purpose of bringing the person ‘before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his (sic) committing an offence’. In Brogan v UK (1988), however, the ECtHR held that the definition of ‘terrorism’ in what was then the Prevention of Terrorism (Temporary Provisions) Act 1984 (‘the use of violence for political ends, including any use of violence for the purpose of putting the public or any section of the public in fear’) was in keeping with the Convention’s notion of an ‘offence’ and so being arrested on reasonable suspicion of such behaviour was not a violation of Article 5.

Giving Reasons When the police arrest someone under section 41, they still have to indicate why the arrest is occurring and under what power. This is a rule laid down by judges for all

Powers of the Police and Army

53

arrests and it has not been abolished by the anti-terrorism legislation. Unfortunately, there is nothing to stop the police from arresting someone on reasonable suspicion of committing unspecified acts of terrorism even though the police may have enough suspicion of the person having committed particular offences. But if a person disputes the lawfulness of his or her arrest the police must still supply details (‘in general terms’) of the matters which constituted reasonable grounds for the arresting constable’s suspicion that the person was involved in terrorism (Clinton v Chief Constable of the RUC, 1991). Note that the police power to enter and search premises if they reasonably suspect that a terrorist is to be found there (s 42 of the Terrorism Act 2000 and page 47 above) applies to all persons reasonably suspected of being terrorists and is not limited to terrorists who are reasonably suspected of particular offences.

The Arrest Powers of Soldiers The army’s main arrest power in Northern Ireland is conferred by section 22 of the Justice and Security (NI) Act 2007. Rather alarmingly, this allows a soldier on duty who reasonably suspects that a person is committing, has committed or is about to commit any offence to arrest that person without a warrant and to detain him or her for up to four hours. There is an argument that this very extensive power is disproportionate and cannot therefore be justified under Article 5 of the ECHR, certainly in the absence of a derogation notice issued under Article 15, but no such challenge has yet been successful in the courts. By section 22(2) a soldier need not give any reasons for an arrest other than to say that he or she is making it as a member of Her Majesty’s forces, but section 22(5) makes it fairly clear that the soldier will need to say more in order to satisfy the requirements of Article 5(2) of the ECHR, which requires that everyone who is arrested must be informed promptly, in a language which he or she understands, of the reasons for the arrest. In practice the army hand over anyone who has been arrested to the police as soon as possible. The army does not question the people it arrests, this being a task for the police in accordance with the relevant codes of practice.

The Power to Detain Under Ordinary Law If a person voluntarily attends at a police station—to help the police with their inquiries—he or she must be allowed to leave whenever they wish. The person can only be stopped from leaving by being arrested (art 31 of the PACE Order). An arrested person can be detained for questioning or released on bail. If the arrest took place under a warrant, the warrant itself may have been endorsed with a note authorising bail. Otherwise the police officer in charge of the station concerned may release the person on bail if satisfied that this will not lead to an injustice.

54

Brice Dickson

Under article 32 of the 1989 Order an arrested person has to be taken to a designated police station if it may be necessary to keep him or her in detention for longer than six hours. In Northern Ireland the 15 police stations which are currently designated are in Antrim, Bangor, Ballymena, Banbridge, Belfast (Grosvenor Road and Musgrave Street), Coleraine, Derry/Londonderry (Strand Road and Waterside), Dungannon, Enniskillen, Limavady, Lisburn, Lurgan and Omagh. The stations at Armagh and Strabane are kept in a ‘PACE-ready’ state so that the Chief Constable can designate them quickly should the need arise. Any other station may be used if detention is to be for less than six hours, or if otherwise there might be an injury caused to any person. Article 32(13), however, makes it plain that the duty to take an arrested person to a police station as soon as practicable after the arrest does not apply if the presence of the person is necessary elsewhere in order to carry out immediate and reasonable investigations. Once arrested and taken to a police station, a person can be arrested there for an additional offence (art 33).

Custody Officers and Searches Until his or her release the arrested person is the responsibility of the station’s ‘custody officer’, who must have at least the rank of sergeant. It is this officer who must authorise the initial detention and any release. Under article 55 of the PACE Order the custody officer must ascertain everything the arrested person has in his or her possession, may require the arrested person to be searched and may seize and retain anything found, except that clothes and ‘personal effects’ may be seized only if the custody officer believes that the arrested person may use them to cause physical injury to someone, damage property, interfere with evidence or assist in an escape or that they may be evidence relating to an offence. Searches must be carried out by a police officer of the same sex as the person searched and before intimate searches are allowed (see page 39 above) special conditions must be satisfied (art 56). These require an officer of at least the rank of inspector to have reasonable grounds for believing that the arrested person may have concealed something which he or she could use to cause injury to someone or a Class A drug. An intimate search which is only for drugs must be conducted by a doctor or nurse at some place used for medical purposes and other intimate searches must be supervised by a doctor or nurse. The arrested person’s custody record must give details of the searches conducted. If a person has been arrested his or her home or the place where the arrest occurred can also be searched, provided that there is some connection between that place and the suspected offence.

Reviews of Detention Throughout the period of detention the position of the arrested person must be reviewed. The first review must be carried out six hours after the detention begins

Powers of the Police and Army

55

and later reviews must be conducted at least once every nine hours (art 41(3)). The review officer must be a police officer of at least the rank of inspector who has not been directly involved in the investigation up to that point (art 41(1) (b)) and it can be conducted by telephone (art 41A) or even by video-conference (art 46A). As soon as the grounds for detention cease to exist, an arrested person must be released or charged (art 35(2)). Once charged, he or she must be released on police bail or brought before a magistrates’ court on that day or on the following day.

Permitted Periods of Detention The maximum permitted period of detention without charge is normally 24 hours (art 42(1)), but in the case of persons arrested for an indictable offence this can be continued by up to 12 hours if a police officer of at least the rank of superintendent, and who is responsible for the police station concerned, has reasonable grounds for believing that continued detention is necessary to secure evidence and that the investigation is being conducted diligently and expeditiously (art 43(1)). Further detention beyond 36 hours is allowed only if authorised by a magistrates’ court. The court can initially allow an extension of up to 36 hours, but a second court order can then be applied for, allowing a further extension that does not bring the total period of detention since the time of the arrest to more than 96 hours (arts 44 and 45).

Information, Legal Advice and Visits Under article 57 of the PACE Order a person arrested and held in custody is entitled, if he or she so requests, to have one friend, relative or other person who is known to the person or who is likely to take an interest in the person’s welfare told, as soon as is practicable, that the person has been detained and where the detention is taking place. In the case of persons arrested for an indictable offence, a police officer of at least the rank of inspector can delay the exercise of this right for up to 36 hours provided he or she has reasonable grounds for believing that telling the named person of an arrest will lead to interference with evidence or with other persons, will lead to other suspects being alerted, will hinder the recovery of any property obtained as a result of the offence or will hinder the recovery of the value of property which has benefited the person detained (art 57(5) and (5A)). An arrested person also has the right, if he or she so requests, to consult a solicitor privately at any time (art 58). Such a request must normally be recorded in the person’s custody record and consultation with a solicitor must then be permitted as soon as practicable, and in any event no longer than 36 hours after the arrest.

56

Brice Dickson

As in the case of the right to inform someone about the detention, access to a solicitor can be delayed for up to 36 hours on the grounds listed in the previous paragraph (art 58(8) and (8A)). If delay is authorised, the reason for it must be noted in the detainee’s custody record (art 58(9)). While a person is in custody he or she may be visited by custody visitors, that is, people who are appointed by the Northern Ireland Policing Board under section 73 of the Police (NI) Act 2000. Custody visitors can speak to detainees in private and can report to the Board on the conditions they find in the police stations’ custody suites. By virtue of the Lay Visitors’ Reports Order 2005 their reports must also deal with the conduct of police interviews with detainees. But custody visitors cannot themselves investigate any complaints raised by detainees. For more information on the custody visitors’ scheme, see the website of the Policing Board.

Compensation for Over-holding Detention for a period longer than that permitted by the law will leave the police open to be sued in civil proceedings for the tort false imprisonment (see Chapter 2). In 1992 the Court of Appeal of Northern Ireland said that the sum to be awarded for unlawful detention should be £600 per hour for the first 12 hours; thereafter a lesser hourly sum should be awarded if it appears that the distress caused has lessened (Oscar v Chief Constable of the RUC, 1992). Today, more than 20 years later, higher sums can reasonably be expected.

The Power to Detain Under Anti-terrorism Law The power to intern someone without trial in Northern Ireland, which was last exercised in 1975, was abolished altogether by section 3 of the Northern Ireland (Emergency Provisions) Act 1998. The Anti-terrorism, Crime and Security Act 2001 allowed the indefinite detention without trial of foreigners reasonably suspected of involvement in terrorism, but that power was never used in Northern Ireland and after its use in England was declared incompatible with Article 5 of the ECHR (in A v Secretary of State for the Home Department, 2004) it was allowed to lapse. Persons arrested under section 41 of the Terrorism Act 2000 can be detained for up to 48 hours (section 41(3)), 12 hours longer than the police can hold suspects under the PACE Order. If the arrest occurs while the person is being examined at a port or border control, the 48-hour period is deemed to begin not at the time of the arrest but at the time the examination begins. In Northern Ireland, two police stations (at Antrim and at Grosvenor Road in Belfast) have been designated as stations at which ‘terrorist’ detainees can be held.

Powers of the Police and Army

57

Detainees’ Rights The detainee’s rights while in detention are set out in paragraphs 6 to 15 of Schedule 8 to the Terrorism Act. The detainee can have one named person (who is known to the detainee) informed as soon as is reasonably practicable that he or she is being detained at a particular police station. The detainee also has the right to consult a solicitor as soon as is reasonably practicable, privately and at any time. In certain circumstances the exercise of these two rights can be delayed if a police superintendent has reasonable grounds for so authorising (para 8). The circumstances in question are those which apply to persons detained under the ‘ordinary’ law but in addition they include situations where the senior police officer reasonably believes that granting the right will interfere with the gathering of information about acts of terrorism or will alert someone and thereby make it more difficult to prevent an act of terrorism or to secure a person’s apprehension, prosecution or conviction in connection with terrorism. The rights must, however, be permitted to be exercised before the first 48 hours of detention have elapsed (para 8(2)). An assistant chief constable can direct that a detainee’s consultation with a solicitor must take place in the sight and hearing of a uniformed police officer of at least the rank of inspector who has no connection with the detainee’s case (para 9). In Brennan v UK (2001) the ECtHR held that there had been a breach of Article 6(3)(c) of the ECHR because a police officer had been within hearing during the applicant’s first consultation with his solicitor after his arrest. But on the facts the Court awarded no compensation and it affirmed that, under the ECHR, the right of access to a solicitor may be subject to restrictions for good cause.

Reviews of Detention Paragraphs 21 to 28 of Schedule 8 to the Terrorism Act 2000 provide for people arrested under section 41 to have their detention reviewed. The first review must be carried out as soon as is reasonably practicable after the person’s arrest and thereafter at intervals of not more than 12 hours (compared with nine hours in the case of ‘ordinary’ detainees). The review officer has to be a police officer who has not been directly involved in the investigation of the matter in connection with which the person has been detained. The detention cannot continue unless authorised by the review officer and unless the person detained or his or her solicitor has been given the opportunity to make oral or written representations about the detention. The review officer must make a written record of the review in the presence of the detainee and inform the detainee at that time whether and, if so, why detention is being continued.

58

Brice Dickson

Permitted Periods of Detention Paragraphs 29 to 37 of Schedule 8 to the Terrorism Act 2000 regulate the extension of detentions beyond the initial maximum of 48 hours. Prior to the coming into force of these provisions the power to extend detentions vested in the Secretary of State and could lead to the detainee being kept in detention for a further five days in total. This necessitated the UK’s ‘derogating’ from (ie opting out of) Article 5 of the ECHR, but the derogation was withdrawn in 1984. The ECtHR then held in Brogan v UK (1988) that detentions for longer than four days and six hours, without the authorisation of a judicial authority, were a breach of Article 5. A new derogation notice was therefore lodged in Strasbourg and its validity—that is, whether it was made in accordance with Article 15 of the ECHR—was upheld by the European Court in Brannigan and McBride v UK (1993). It was set out in Schedule 3 to the Human Rights Act 1998. But with the commencement of the Terrorism Act 2000 in 2001, and the removal of the Secretary of State’s involvement in the authorising of detentions, the derogation notice was again withdrawn. An extension of detention is now possible only if a police officer of at least the rank of superintendent applies successfully to a county court judge or a designated district judge for the issue of a warrant of further detention. An application for an extension can be made during the six-hour period following the initial maximum of 48 hours, but the application must then be dismissed by the judge or magistrate if he or she considers that it would have been reasonably practicable to make the application during that 48-hour period. Moreover, an application cannot be heard unless the detainee has been given notice of it as well as an opportunity to make oral or written representations and to be legally represented at the judicial hearing, although the judge can exclude the detainee and/or his or her legal representative from any part of the hearing. It is lawful for the police to withhold information from the detainee and his legal representative when they apply for an extension of the detention on the ground that further questioning of him was necessary: the police are not required to let the detainee know the nature of the questions it wishes to put to him during the extended detention (Ward v Police Service of Northern Ireland, 2007). The initial extension can be for any period, provided that it does not end more than seven days after the date of the detainee’s initial arrest (or the beginning of his or her examination at a port or border control if the arrest took place during such examination). Further applications for extended detention can then be made provided that the total detention does not end more than 14 days after the detainee’s initial arrest. This new maximum was imposed by the Criminal Justice Act 2003 (s 306). It was further increased to 28 days by the Terrorism Act 2006 (s 23(7)), and Prime Minister Tony Blair wanted it increased to 42 or even 90 days, but when the coalition government took office in 2010 it quickly reduced the maximum back to 14 days, where it remains today. The Protection of Freedoms Act 2012 confirms that maximum (s 57) but adds that at times when Parliament

Powers of the Police and Army

59

is dissolved or has just been elected the Secretary of State may allow for 28-day detentions if he or she considers that this ‘is necessary by reason of urgency’ (s 58); the consent of the Director of Public Prosecutions would then be required for any such prolonged detentions in Northern Ireland.

Visits and Compensation for Over-holding The mechanisms described above for allowing ‘ordinary’ detainees to be visited by custody visitors and to claim compensation for over-holding apply equally to persons detained under the anti-terrorism laws. Under section 36 of the Terrorism Act 2006, as amended, the Independent Reviewer of Terrorist Legislation can also consider the treatment of suspects detained under a warrant of further detention anywhere in the UK, but in Northern Ireland, unlike in England and Wales, custody visitors are not yet required to send to the Independent Reviewer their reports on places where ‘terrorist’ detainees are held. At present the reports are shared on a voluntary basis, with the consent of the Chief Constable.

The Power to Take Photographs and Fingerprints As a person has no absolute right in law to his or her own image, the police can photograph people who are detained. This does not breach the ECHR (Murray (Margaret) v UK, 1993). Further regulation of the process was inserted as section 64A of the PACE Order by section 93 of the Anti-terrorism, Crime and Security Act 2001. Article 61 of the PACE Order provides that fingerprints (and palm prints) may be taken without a person’s consent if a police officer of at least the rank of superintendent authorises them to be taken or if the person has been charged with, or is to be reported for, an offence. In both of these situations the person must already have been detained at a police station. There is no power to fingerprint someone who has not been arrested and if an arrested person has not yet been charged or told that he or she is to be reported there must be reasonable grounds for suspecting that the person is involved in an offence and that the fingerprints will tend to confirm or disprove this involvement. Under the Terrorism Act 2000 (Sch 8, para 10(2) and (4)), a police officer may take a detained person’s fingerprints without his or her consent only if the person is detained at a police station and a police officer of at least the rank of superintendent authorises it or if the person has been convicted of a recordable offence. In all cases the police may use reasonable force to take fingerprints if the detainee does not consent to the process, but a written record must be kept of the reason for taking the prints.

60

Brice Dickson

The Power to Take Samples Under the ordinary common law the police have no power to take samples from a person’s body. To do so without the person’s consent would be an assault. An important statutory exception is the Road Traffic (NI) Order 1981, under which it is an offence to refuse to supply a sample of breath, blood or urine in cases of alleged driving while under the influence of alcohol or drugs. The PACE Order creates further important exceptions in articles 62 and 63. The Order distinguishes between non-intimate samples, which can be forcibly taken, and intimate samples, which can be taken only with the person’s consent. Under the Terrorism Act 2000 the police’s powers in relation to samples are the same as in relation to fingerprints (see above). Again, no intimate sample may be taken without the detainee’s consent. ‘Non-intimate samples’ are hair other than pubic hair, material taken from a nail or from under a nail, saliva, a mouth swab or any other body swab, a footprint or any other impression of a part of the body other than the hand. ‘Intimate samples’ are samples of blood, semen or any other tissue fluid, urine or pubic hair, or a swab taken from any of a person’s body orifices except his or her mouth. All samples require the written authorisation of a police officer of at least the rank of superintendent, who must have reasonable grounds for suspecting the involvement of the person in an indictable offence and for believing that the sample will tend to confirm or disprove this involvement. A written record must be kept of the sampling. Intimate samples must be consented to in writing and (except for urine samples) be taken by a doctor. If a person refuses to consent to the taking of an intimate sample, then in any proceedings against that person the magistrate, judge or jury may ‘draw such inferences as appear proper’ (art 62(10) of the PACE Order). According to an answer given to a Freedom of Information Act request, in April 2010 the PSNI held 131,418 DNA samples on their database. These related to 87,345 different individuals, 3,076 of whom were under the age of 18. The same answer revealed that in 2009 218 crime cases were cleared as a result of evidence from DNA samples.

The Power to Retain Fingerprints and DNA Profiles After the police have collected fingerprints, DNA samples or other biometric material from people who have been arrested, the police can store it. Until recently, the permitted retention period was indefinite, but in S and Marper v UK (2009) the Grand Chamber of the ECtHR held that such a power breached Article 8 of the ECHR because it was too extensive. The law has therefore been changed.

Powers of the Police and Army

61

The position in England and Wales is now regulated by sections 1 to 25 of the Protection of Freedoms Act 2012 and in Northern Ireland by articles 63B to 63R of the PACE Order, which were inserted by section 9 of, and Schedule 2 to, the Criminal Justice Act (NI) 2013. The new laws provide that after fingerprints and DNA samples and so on have been collected they must be destroyed unless they can be retained under a specific power. Material collected in connection with the investigation of an offence in which it is suspected that the person to whom the material relates has been involved may be retained until the Chief Constable determines that the material is of no evidential value (art 63C). All DNA samples taken from persons on arrest, whether or not the person is later convicted, must generally speaking be retained only for as long as necessary to create a DNA profile and in any event for no longer than six months. If an adult is convicted of or cautioned for a recordable offence, his or her fingerprints and DNA profiles can be retained indefinitely, but if a person does not have such a previous conviction, the material collected can only be retained for up to three years provided the consent is obtained of a new official called the Northern Ireland Commissioner for the Retention of Biometric Material. However, the Chief Constable can apply to a District Judge to have the three-year retention period extended to five years (art 63D). If any person receives a penalty notice issued pursuant to an arrest for a recordable offence, retention can be for two years. Material relating to a person who has been convicted of an offence under the law of any place outside Northern Ireland may be retained indefinitely (art 63G). If a person under the age of 18 is convicted for the first time of a minor offence, fingerprints and DNA profiles can be retained for five years if the sentence imposed is non-custodial, or for five years plus the length of the sentence if the sentence is custodial. If a person under the age of 18 is convicted of a minor offence for the second time, or of a serious offence, or receives a custodial sentence of five years or more, his or her fingerprints and DNA profiles can be retained indefinitely. If a person is given a caution for a recordable offence committed while under the age of 18, or has completed a diversionary youth conference, material can be retained for five years. Before any fingerprints and DNA are destroyed, relevant databases must be searched to see if a match can be found, and article 63M allows material to be retained for longer than is otherwise lawful if the person to whom it relates consents to that retention. None of the above provisions apply to material collected from persons who have been arrested for or charged with terrorist activities (art 63R). It seems that such material can still be held indefinitely.

The Power to Use Force Whenever they are carrying out their ‘ordinary’ function of preserving the peace, the police are not entitled to use force. They must act with restraint, resisting

62

Brice Dickson

pressure rather than applying it. Even when controlling crowds or patrolling a procession or parade they must not apply force in an active manner. If they do so, they can be sued for assault. However, if the police are preventing crime or effecting a lawful arrest, they can use ‘such force as is reasonable in the circumstances’ (s 3(1) of Criminal Law Act (NI) 1967). The burden of proving that the force used was reasonable lies on the police. In relation to police powers expressly conferred by the PACE Order, article 88 states that the police ‘may use reasonable force, if necessary, in the exercise of the power’. The term ‘reasonable’ suggests that the force used must be in proportion to the gain the police hope to achieve through exercising the power. The term ‘necessary’ implies that other means of exercising the power must be attempted first. This would seem to impose a stricter test than that contained in the 1967 Act, but no court has yet ruled on how the two provisions interrelate. As regards police powers conferred by the Terrorism Act 2000, section 114(2) states that a constable may if necessary use reasonable force for the purpose of exercising any of them except the power to question people at ports and in border areas. Likewise, under section 33(3) of the Justice and Security (NI) Act 2007 a police officer or soldier ‘may if necessary use reasonable force for the purpose of exercising a power conferred’ by sections 21 to 30 of that Act. But in all cases, under the ECHR, the force used has to be proportionate to the purpose lying behind the power. For many years, the police in Northern Ireland have used baton rounds (sometimes called plastic bullets or, since 2005, ‘attenuated energy projectiles’) to help quell riots or other serious disturbances. Whether in any particular case the use of such a weapon is lawful will depend on the circumstances of its firing and, in particular, on the dangers facing the officers in question. Under the ECHR, anyone is entitled to use proportionate force to protect his or her own life or the lives of others. In Kelly (John) v UK (1993) a 17-year-old boy was shot by the army while driving a stolen car which tried to evade a vehicle checkpoint (VCP). The European Commission of Human Rights held that the application was inadmissible because the force used was justifiable as an attempt to effect an arrest and any such arrest would have been lawful because the harm to be averted by preventing the escape of terrorists outweighed the harm likely to be caused by the shooting. However, in the light of the more recent decision by the ECtHR in McCann v UK (1998), the state will be held in breach of its duty to protect life under Article 2 of the ECHR if it does not plan VCPs in such a way as to minimise the need for shots to be fired at a car which fails to stop. The police retain a wide discretion as to when to use force to police a protest or to protect people who are close to a protest. This was made clear by all the courts which looked at how the police dealt with the so-called protest near Holy Cross Girls’ Primary School in North Belfast in 2001: the House of Lords found that neither the police’s actions nor their omissions to act breached Article 3 of the ECHR, which guarantees the right not to be ill-treated (E v Chief Constable of the RUC, 2008) and the ECtHR declared the subsequent application lodged in Strasbourg to be

Powers of the Police and Army

63

‘manifestly ill-founded’ (PF and EF v UK, 2010). This approach was confirmed by the Court of Appeal of Northern Ireland in Re DB’s Application (2014), where it was held that the PSNI had not misunderstood their powers when refusing to apply force to stop loyalist flag protestors from ‘parading’ past the Short Strand area in East Belfast.

The Power to Interfere with Property Section 29 of the Justice and Security (NI) Act 2007 is the provision which legalises actions taken by the security forces whenever private property rights are interfered with in order to preserve the peace or maintain order. It permits any person, if authorised by the Secretary of State, to take possession of any property, to defend any structure, to detain, destroy, or move any property, to carry out works on possessed land or to do any other act interfering with any public or private rights of property. It is, therefore, perfectly lawful for the police to take over a house for the purpose of keeping an eye on a nearby building. Farmland, too, can be requisitioned so that look-out posts or fences can be constructed. Under section 30 of the 2007 Act a police officer, soldier or other authorised person may wholly or partly close a road, right of way or waterway if he or she considers this to be immediately necessary for the preservation of the peace or the maintenance of order. The exercise of this power does not require the consent of the Secretary of State, but under section 32 the Secretary of State can order the closure of any road on a more permanent basis (ie even if there is no immediate necessity for it). Interference with any work undertaken pursuant to these powers is a crime, punishable by up to six months in prison and a fine of up to £5,000 (ss 31 and 32(5)).

The Right to Compensation Under both the Terrorism Act 2000 (s 102 and Schedule 12) and the Justice and Security (NI) Act 2007 (s 38 and Schedule 4), if property is taken or damaged in the course of exercising police or army powers under those Acts anyone who has an interest in the property and who has suffered loss as a result of the action taken has a right to compensation from the Secretary of State. Claims must normally be made within 28 days of the action taken and if the applicant is refused compensation or is dissatisfied with the amount granted he or she can then appeal, within six weeks, to a county court. Compensation will not be paid if the applicant is convicted of an offence connected with what the police or army were doing at the time the loss was caused.

64

Brice Dickson

Complaints Against the Army Soldiers in the army are subject to the ordinary criminal law just like anyone else in society. In addition, they can be dealt with under their own system of law, called military law, which means that for alleged offences that do not involve civilians they can be court-martialled. Very few soldiers have been prosecuted under the criminal law in Northern Ireland and those who have been tried and convicted have tended to receive sentences which have not been severe. After Private Lee Clegg was convicted of murder at a VCP, a successful campaign was mounted to have his conviction quashed even after it had been confirmed by the House of Lords (R v Clegg, 1995 and 2002). After two Scots Guards were convicted of the murder of Peter McBride in 1992 they were released from prison after serving just six years and were allowed to resume their places in the army even though soldiers found guilty of much less serious crimes have been ejected. Attempts to have the Army Board’s determination in this case overturned by the courts failed (Re McBride’s Application, 2001) and an application to the ECtHR was declared inadmissible because it did not directly engage the right to life under Article 2 of the ECHR (McBride v UK, 2007). It is possible to bring a civil claim for compensation against the army, and the standard of proof will then simply be ‘on the balance of probabilities’, not ‘beyond reasonable doubt’ as in criminal cases. In several instances, even some involving the alleged misuse of firearms, the Ministry of Defence has settled claims out of court, although without an admission of liability. Occasionally cases have been fought to a successful conclusion in court. If a breach of the law is suspected, notwithstanding attempts to prevent it, the victim should try to take note of what is happening and write down the details as soon as this becomes possible (times, exact locations, who was involved, etc). He or she should also ask for the names, numbers and units of the soldiers in question. Every army patrol is required to carry cards identifying their regiment number with a phone number where complaints may be lodged. Soldiers are under orders to distribute the cards to anyone seeking to make a complaint against them. A complaint should be lodged with the local army commander. It will then be investigated by the local ‘civil representative’. The police should be involved if the complainant suspects that what has occurred amounts to a criminal offence, such as an assault, but the Police Ombudsman’s office has no jurisdiction over complaints against the army. The official reviewer of the anti-terrorism measures in the Justice and Security (NI) Act 2007 (see page 33 above) is the person who now oversees the way the army handles the complaints it receives.

Powers of the Police and Army

Useful Contacts British Army Headquarters (Northern Ireland) Thiepval Barracks Lisburn Co. Antrim tel: 028 9266 5111 David Anderson QC Independent Reviewer of the Terrorism Acts Brick Court Chambers 7–8 Essex Street London WC2R 3LD tel: 020 7379 3550 terrorismlegislationreviewer.independent.gov.uk David Seymour CB Independent Reviewer of the Justice and Security Act c/o Northern Ireland Office 1 Horse Guards Road London SW1A 2HQ tel: 020 7270 3000 Northern Ireland Policing Board Waterside Tower 31 Clarendon Dock Belfast BT1 3PG tel: 028 9040 8500 www.nipolicingboard.org.uk Northern Ireland Statistics and Research Agency 10 Castle Street Belfast BT1 1GT tel: 028 9034 8100 email: [email protected] www.nisra.gov.uk Police Service of Northern Ireland Headquarters Brooklyn 65 Knock Road Belfast BT5 6LE tel: 028 9065 0222 www.psni.police.uk

65

4 Questioning Suspects and Witnesses JOHN JACKSON, FIONA DOHERTY AND MALACHY MCGOWAN

The investigation of crimes was originally the responsibility of jurors, then of magistrates. During the nineteenth century the task was given to the police. As explained in Chapter 3, the police do not have a general power to stop a person for questioning unless he or she is placed under arrest, nor do they have a general power to detain someone for the purpose of getting ‘help with police inquiries’. There is no half-way house between voluntary cooperation with the police and arrest for a specific offence. Although the police have statutory powers to stop and question individuals in certain circumstances (see, eg s 21 of the Justice and Security (NI) Act 2007 and Chapter 3), in the absence of an obligation either at common law or by statute it is not a criminal offence to refuse to give a police officer information he or she requests, including your name and address (Chief Constable PSNI v Devlin, 2008). The absence of any duty to reply to police questions is usually referred to as ‘the right of silence’. It also protects defendants (ie the persons accused of crimes) from having to give evidence at their trial. We shall see, however, that this right has been limited by the Criminal Evidence (NI) Order 1988. A person other than a defendant is protected by the right of silence at a trial only to the extent that he or she can claim the privilege to decline to answer a question which may incriminate him or her in a criminal offence.

Unlawful Questioning The police must conduct their questioning of suspects within the law and it is always open to a person who has been assaulted in the course of police questioning, perhaps for the purpose of extracting a confession, to bring a civil action against the police officers involved. A further question is whether ill-treatment of a detained person in the course of questioning renders his or her detention unlawful. In one case involving a man whose eardrum was perforated, the High Court of Northern Ireland held that if a person is lawfully arrested for the purpose of questioning but is subsequently assaulted during questioning, the detention becomes

68

John Jackson, Fiona Doherty and Malachy McGowan

unlawful and the person is entitled to a writ of habeas corpus to secure release (Ex parte Gillen, 1988). However, the House of Lords in R v Deputy Governor of Parkhurst Prison, ex parte Hague (1992) expressed disapproval of the opinion that ill-treatment of a detained person makes the detention unlawful. The decision in Ex parte Gillen was subsequently distinguished by the House of Lords in Cullen v Chief Constable of the Royal Ulster Constabulary (2003), and interpreted by Lord Millett in that case as stating that the power to hold a suspect must be exercised solely for the purpose of lawful questioning. On the facts of the case the power had been exercised for a different and wrongful purpose, namely unlawful questioning due to the use of force to extract a confession, making the exercise of the power unlawful. The use of force may therefore make the grounds for detention unlawful.

Article 74 of the PACE Order For many years, the most significant restriction on the power of the police to question suspects was the rule that a statement could be used as evidence only if it had been made voluntarily. This meant that, when an accused person challenged the validity of a confession which he or she had allegedly made, the prosecution had to prove beyond reasonable doubt that the statement had not been obtained ‘by fear of prejudice or hope of advantage held out by a person in authority’. This test was later extended to require the prosecution to show that the statement was not obtained by ‘oppression’. In a major change brought about by article 74 of the Police and Criminal Evidence (NI) Order 1989 (the PACE Order), the prosecutor now has to prove that a confession made by an accused was not obtained by oppression of the person who made it or in consequence of anything said or done which was likely to render it unreliable. The voluntariness principle no longer applies. A ‘confession’ is defined in article 70(1) as ‘any statement wholly or partly adverse to the person who made it’. Although this definition includes so-called ‘mixed’ statements that are partly exculpatory as well as inculpatory, the House of Lords has considered that to come within the definition, a statement must be incriminatory on its face and not simply by virtue of damaging the credibility of the maker (eg a false alibi later shown to be a lie: R v Hasan, 2005). The admissibility of a confession (ie whether it can be accepted as proper evidence in a court of law) is frequently tested during what is known as a ‘voir dire’ or a ‘trial within a trial’. This is when the judge asks the jury to withdraw so that it cannot be influenced by hearing evidence which the judge might rule to be inadmissible. If an alleged confession is ruled inadmissible by the judge, the prosecution may not adduce evidence given by the accused at the voir dire at a later stage of the trial, so long as the evidence in question was relevant to the issue at the voir dire. If what the accused says at the voir dire were to be admissible at the trial, it might significantly impair his or her right of silence at the trial.

Questioning Suspects and Witnesses

69

In R v Brown (2012) the Court of Appeal of Northern Ireland cited approvingly Lord MacDermott’s description of ‘oppressive questioning’ in his 1968 address to the Bentham Club: questioning which by its nature, duration, or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent.

For the purposes of article 74 of the PACE Order, ‘oppression’ is defined to include torture, inhuman or degrading treatment and the use or threat of violence, whether or not amounting to torture (art 74(8)). This seems a narrower definition than at common law, but the word ‘includes’ entitles the courts to extend the categories of oppression to the kinds of conduct and circumstances considered oppressive at common law. In his interpretation of the equivalent English provision in R v Hasan (2005), Lord Steyn noted that the section was not exhaustive and quoted the following conclusion with approval: ‘oppression’ in s 76(2)(a) should be given its ordinary dictionary meaning. The Oxford English Dictionary as its third definition of the word runs as follows: ‘Exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc.; the imposition of unreasonable or unjust burdens.’ One of the quotations given under that paragraph runs as follows: ‘There is not a word in our language which expresses more detestable wickedness than oppression’. We find it hard to envisage any circumstances in which such oppression would not entail some impropriety on the part of the interrogator.

Circumstances not amounting to the use or threat of violence have therefore been considered as amounting to oppression. In R v Mushtaq (2005), the oppression contemplated (though not found to have occurred on the facts) involved a threat by police to prevent the suspect from visiting his ill wife in hospital unless he made admissions. Whether there is oppression in an individual case depends on many elements, including the length of time intervening between periods of questioning, the length of any specific period of questioning, whether the accused has been given proper refreshment, and the characteristics of the person who made the statement. The other kind of evidence which is wholly excluded under article 74 is a confession made in consequence of conduct likely to render it unreliable. This extends the categories of behaviour which may exclude a confession beyond threats and inducements, but makes it clear that a confession will be excluded only where the conduct was likely to render unreliable any confession which the accused might have made as a result. The question for the court is a hypothetical one: might what was said or done have been likely, in the circumstances, to make any confession by the defendant unreliable? According to Blackstone’s Criminal Practice ‘the court must consider whether what happened was likely in the circumstances to induce an unreliable confession to the offence in question, and to ignore any evidence suggesting that the actual confession was reliable’.

70

John Jackson, Fiona Doherty and Malachy McGowan

Much therefore depends on what is considered by judges to make a confession unreliable. The Court of Appeal of Northern Ireland considered the reliability of a number of confessions in relation to historic convictions in R v Brown (2012). When an applicant made admissions in an initial interview which the interviewing detectives had not realised were fabricated, these were circumstances likely to render subsequent admissions unreliable. The absence of a solicitor or independent person during a police interview also gave rise to real concerns over the reliability of admissions by a young person with learning difficulties who was likely to be suggestible and more vulnerable in police interviews. Conversely, the fact a confession consists largely of information in the public domain does not make it more likely to be unreliable, whilst a confession made by a prisoner to a journalist probably constitutes circumstances which would enhance, rather than cast doubt on, reliability (R v McKeown, 2006).

Rules on Police Questioning The Judges’ Rules The conduct of police questioning used to be governed by what were known as the Judges’ Rules, so called because they had their origin in a set of rules formulated and approved by senior English judges in 1912 and 1918. A second version of them was approved in 1964 and these were adopted in Northern Ireland in 1976. Appended to the Judges’ Rules was a set of Administrative Directions which were concerned with affording persons questioned reasonably comfortable conditions and adequate breaks and refreshment, and with creating special procedures for persons unfamiliar with the English language or of immature age or limited understanding. It is important to realise, however, that neither the Judges’ Rules nor the Administrative Directions had the force of law: they were merely statements of good practice which judges were entitled to take into account when deciding whether or not a police officer had acted lawfully. In R v Brown (2012) the Court of Appeal of Northern Ireland had to decide how to deal with appeals referred to it by the Criminal Cases Review Commission concerning individuals who were interviewed during the 1970s. It did so by applying the dicta of Lord Bingham in R v King (2000): If, in a case where the only evidence against a defendant was his oral confession which he had later retracted, it appeared that such confession was obtained in breach of the rules prevailing at the time and in circumstances which denied the defendant important safeguards later thought necessary to avoid the risk of a miscarriage of justice, there would be at least prima facie grounds for doubting the safety of the conviction—a very different thing from concluding that a defendant was necessarily innocent.

Questioning Suspects and Witnesses

71

Guidance and Codes As a consequence of the Criminal Evidence (NI) Order 1988, the Lord Chief Justice of Northern Ireland issued a Practice Note cancelling the Judges’ Rules and announced that to replace them the Secretary of State had issued written guidance to the Chief Constable of the Royal Ulster Constabulary (RUC). This guidance was subsequently incorporated in Code of Practice C for the Detention, Treatment and Questioning of Persons by Police Officers, issued under article 65 of the PACE Order. This Code of Practice applies to all suspects, except those arrested and detained under the Terrorism Act 2000, for which a revised Code of Practice H has applied since 2008. We will see below that there are differences in the degree of protection offered to suspects under each of these Codes. Code of Practice C (which was most recently revised in 2014) requires all arrested persons, and all persons who are being questioned regarding their involvement or suspected involvement in an offence, to be cautioned in the following terms: You do not have to say anything, but I must caution you that if you do not mention when questioned something which you later rely on in court, it may harm your defence. If you do say anything it may be given in evidence.

Suspects who are in custody must in addition be given a written notice setting out the terms of this caution so as to ensure that they are fully aware of the consequences of their action. The Code contains detailed rules on how interviews are to be conducted. It requires that an accurate record be made of each interview with a person suspected of an offence and that the record be signed by the suspect as correct. Interviews in police stations cannot be conducted without the consent of the custody officer, who must be an officer not involved in the investigation of the offence and whose responsibility is the treatment of detained persons. In any detention period of 24 hours, a suspect must be allowed at least eight hours of continuous rest. When an interviewing officer considers that there is sufficient evidence to prosecute a suspect and that the suspect has said all that he or she wishes to say about the offence, the officer must bring him or her before the custody officer, who is then responsible for considering whether the suspect should be charged. On being charged the suspect should again be cautioned and given a written notice showing particulars of the offence and stating the terms of the caution. Questions relating to the offence should not be put to him or her after charge unless they are necessary to prevent harm to some other person, to clear up an ambiguity in a previous answer, or because it is in the interests of justice that the detainee be given an opportunity to comment on information that has come to light subsequent to his or her being charged. There are provisions for post-charge questioning in the Counter-Terrorism Act 2008. They were brought into force for England, Wales and Scotland in 2012 but they do not yet apply in Northern Ireland.

72

John Jackson, Fiona Doherty and Malachy McGowan

Audio-taping and Video Recording A further Code of Practice has been issued under article 60 of the PACE Order requiring that in certain circumstances interviews at police stations should be audio-recorded (Code E). Under this Code, which first became effective in 1996 and was revised in 2007 and 2012, interviews should be audio-recorded where a person has been cautioned in respect of any indictable offence, save for the offence of driving whilst uninsured. Interviews with persons cautioned for other offences may be recorded at the police’s discretion. A uniformed officer not below the rank of inspector may authorise an interview not to be recorded if the equipment is faulty and the interview should not be delayed, or where it is clear that there will not be a prosecution. The audio recording may also be switched off at the request of the interviewee without any obligation on officers to ascertain the reason for the request (R v Blaney, 2004). Article 60A of the PACE Order provides for the visual recording with sound of some interviews and Code of Practice F has been issued to regulate this. It applies to interviews regarding indictable offences (or offences which can be tried either on indictment or summarily) which take place when the interviewee: — has (exceptionally) already been charged or informed that he or she may be prosecuted; — is deaf, blind or speech-impaired, and uses sign language to communicate; — requires the help of an ‘appropriate adult’ (see below) or — has requested (perhaps through his or her legal representative) that the interview be visually recorded. There is a separate Code of Practice for the video recording of interviews with suspects detained under the Terrorism Act 2000 (see below).

Young and Mentally Disordered Persons The PACE Code of Practice C requires that a person under the age of 18, or a person who is ‘mentally disordered’, whether suspected of an offence or not, must not be interviewed or asked to provide or sign a written statement in the absence of an ‘appropriate adult’, unless an officer of the rank of superintendent or above considers that delay would involve an immediate risk of harm to persons or a serious loss of property, the alerting of other suspected persons, or the hindering of the recovery of property. In the case of a juvenile, an ‘appropriate adult’ means the juvenile’s parent or guardian, a social worker or a responsible adult over 18 who is not a police officer or an employee of the Policing Board, or a solicitor or independent custody visitor who is otherwise present at the police station in that capacity. In the case of a person who is mentally disordered or vulnerable, ‘appropriate adult’ has a similar meaning, substituting for a social worker someone who is experienced in dealing with mentally disordered

Questioning Suspects and Witnesses

73

or mentally vulnerable people but is not a police officer or an employee of the Policing Board. Article 10 of the Criminal Justice (Children) (NI) Order 1998 imposes a duty, where a child is in police detention, to take such steps as are practicable to ascertain the identity of a person responsible for his or her welfare and to inform that person, unless it is not practicable to do so, why and where the child is being detained. This does not, however, oblige the child to provide his or her identity to the police (Chief Constable of the PSNI v Devlin, 2008). A ‘child’ is defined by section 2 as a person under the age of 18.

Enforcement of the Rules on Questioning Aside from the requirement to exclude confessions which are rendered inadmissible under article 74 of the PACE Order (see above), judges have a discretion under the common law (ie non-statutory law) to exclude from court proceedings any statement which has been obtained unfairly. It is their duty to see that the accused has a fair trial according to law (R v Sang, 1979). In one Northern Irish case other matters which were considered to be relevant to the judge’s discretion included the reason that led the accused to say what he or she said, whether the police had acted improperly in order to get the accused to crack under the strain, and the unlawfulness of the police conduct, but it was stressed that the ‘paramount criterion’ was the fairness of the accused’s trial (R v McBrien and Harman, 1984). In addition, article 76 of the PACE Order states that in any criminal proceedings the court may refuse to admit evidence on which the prosecution proposes to rely if it appears that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The effect of this is that, just as the courts have a broad common law discretion to exclude statements that have been obtained unfairly, they also have a broad statutory discretion to exclude statements obtained in breach of a Code of Practice issued under the Order. Courts in England have been much more prepared to use their power to exclude statements under the statutory discretion than they have ever been prepared to do under their common law discretion. All evidence obtained by police oppression is liable to be excluded under article 76, including exculpatory or neutral statements made by the accused which fall outside the definition of ‘confession’ for the purposes of article 74 (R v Hasan, 2005). Where a defendant alleges that a confession has been obtained through improper means, the judge must be satisfied that it was not so obtained before admitting it. The judge must also direct the jury that even if they believe the confession to be true they must disregard it if they believe it was, or may have been, obtained by oppression or anything likely to render it unreliable (R v Mushtaq, 2006). However, where a defendant denies making the confession at all and alleges that his or her signature on the confession has been obtained through oppression, such

74

John Jackson, Fiona Doherty and Malachy McGowan

a direction is unnecessary and would likely confuse a jury (Miguel v The State, 2011). The judge will not necessarily need to resolve a dispute as to whether a confession was in fact made when deciding whether to exercise the discretion to exclude it, although this may be so bound up with the issue of the fairness that it must be addressed (R v McKeown, 2006). The fact that police have used a trick or a stratagem to trap a defendant into incriminating him- or herself (eg by using undercover officers or informers) will not automatically render the evidence inadmissible. However, where there has in effect been the ‘functional equivalent of an interrogation’ the resultant evidence will be inadmissible as circumventing the requirements of the PACE Order and thus unfairly obtained. Unfairness may also arise in circumstances where the person who made the confession owed such an obligation to the person to whom it was made that the former’s right of silence was undermined, although where the conversation has been initiated by the accused and undercover agents have responded by picking up ‘the flow and content of the conversation without directing or redirecting it in a sensitive area’, this will not be regarded as an interrogation (R v Fulton, 2009). The exclusion of one or more admissions under article 76 will not automatically require the exclusion of subsequent admissions, although courts may consider whether a suspect believed his or her ‘goose was cooked’ and had no time to consider whether to resile from what he or she had said or to obtain legal advice (R v Fulton, 2006; R v Robinson, 2003). It is also important to note that as a consequence of the Human Rights Act 1998 courts are required to give effect to European Convention rights, including the right to a fair trial guaranteed by Article 6 of the Convention. If evidence has been obtained in breach of the right to a private and family life under Article 8 of the Convention this is regarded as relevant but not determinative when establishing whether there has been unfairness under article 76 of the PACE Order or a breach of the right to a fair trial (R v Fulton, 2006). The Codes of Practice issued under the PACE Order, like the earlier Judges’ Rules, do not have the full force of law. Article 66(7) states merely that a police officer will be liable to disciplinary proceedings if he or she fails to comply with any provision in a code. As regards whether a statement obtained in breach of a code can be used as evidence, article 66(10) states, in effect, that in all criminal and civil proceedings the courts may take such account of any breach as they think fit. In some cases this will mean excluding the statement. In R v Bothwell (2008) the Court of Appeal of Northern Ireland held that breach of the Code will not automatically lead to the exclusion of a confession, the ‘touchstone’ being the effect of the breach on the fairness of the proceedings, which in turn requires consideration of the nature and extent of any breach. ‘Serious and substantial’ breaches in recording an alleged comment, which had left the defendant at a substantial disadvantage, led in that case to a finding that the comment should have been excluded under article 76.

Questioning Suspects and Witnesses

75

Questioning Under Anti-terrorist Legislation A number of emergency powers were enacted for Northern Ireland in 1973 on the recommendation of the Diplock Commission and many are still enshrined in the Terrorism Act 2000 and the Justice and Security (NI) Act 2007. The Diplock Commission believed that, as regards police questioning, the voluntariness principle was, with its technical rules, hampering the course of justice. In particular, the court in R v Flynn and Leonard (1972) had excluded statements obtained as a result of questioning which was designed to build up an atmosphere in which the initial desire to remain silent was replaced by an urge to confide in the questioner. The Diplock Commission considered that, if human lives were to be saved and destruction of property prevented in Northern Ireland, the security authorities must have the power to build up an atmosphere of this kind. To this end it proposed that admissibility of confessions should depend on the much lower standard of the absence of torture or inhuman or degrading treatment, a standard derived from Article 3 of the European Convention on Human Rights (ECHR). This proposal was enacted in subsequent emergency legislation and in section 76 of the Terrorism Act 2000. In his report on the operation of that Act in Northern Ireland during 2001, the then Independent Reviewer (see below), Lord Carlile of Berriew QC, recommended the repeal of section 76 and after a period of consultation it was repealed in 2002. The effect of this is that article 74 of the PACE Order now governs the admissibility of all confessions in Northern Ireland. There is, however, a specific Code of Practice on the detention, treatment, questioning and identification of persons detained under the Terrorism Act (Code H). A further Code of Practice has been issued to govern the actions of examining officers at ports and airports under the Terrorism Act. It is currently under revision for re-issue in 2014. Like the Codes of Practice issued under the PACE Order, the Codes issued pursuant to the Terrorism Act lack the full force of law, but failure by police officers to comply with them (the Codes do not apply to arrests made by the army) may make them liable to disciplinary proceedings (unless criminal proceedings are pending against them) and the provisions of the Codes may be taken into account by the courts when deciding whether to admit confessions. PACE Code H contains detailed provisions relating to custody records, initial action, the detainee’s property, the right not to be held incommunicado, the right to legal advice, conditions of detention, care and treatment, cautions, interviews, interpreters, reviews and extensions of detention, and charging. Annexes deal with delays in notifying arrest or allowing access to legal advice, restrictions on adverse inferences from silence, written statements under caution, mentally disordered or otherwise mentally vulnerable people and fitness to be interviewed. There remain key differences between Codes C and H, including the possibility of restrictions upon confidential access to legal advice (as explained below). Unlike previous codes, however, Code H does allow those detained under the

76

John Jackson, Fiona Doherty and Malachy McGowan

Terrorism Act to talk on the telephone with anyone, to have writing materials, to receive visits, and to be medically examined by a Medical Officer of their own choosing (and at their own expense). There is no longer any provision allowing for a medical examination requested by a detainee to be delayed where the custody officer believes this would prejudice the investigation. In addition, after many years of refusing to extend the rules on recording of interviews to suspects arrested under emergency legislation, the government issued Codes of Practice for both the audio and video recording of such interviews in 2001 (Terrorism Act 2000, Sch 8, paras 3 and 4). The result is that all interviews by police officers of persons detained under the Terrorism Act 2000 must now be audio- and video-recorded. In 1992 the government appointed an ‘Independent Commissioner’ to pay random visits to interrogation centres to oversee the conditions under which detainees were being held. The post was discontinued in 2005, when the Policing Board’s custody visitor scheme assumed responsibility for oversight. An Independent Reviewer of Terrorism Legislation retains the power to visit all specialist terrorist detention centres, including Antrim Serious Crime Suite, and the current postholder, David Anderson QC, has emphasised that ‘the historical reputation of terrorist detention centres, particularly in Northern Ireland, is such as to require the highest standard of protection to be in force at all times’. (Report on the Terrorism Acts in 2011, para 7.40.) Section 117 of the Criminal Justice Act 2009, when in force, will extend the powers of the Independent Reviewer to consider, as part of his annual review, whether the requirements of Codes of Practice have been complied with in relation to persons detained under section 41 of the Terrorism Act. It will also require custody visitors to give a copy of their reports to the Independent Reviewer, and allow them to listen to and view audio and video recordings of detainees being interviewed.

The Right of Access to a Lawyer Under article 59 of the PACE Order, a person arrested and held in custody is entitled to consult a solicitor privately at any time if he or she so requests. The police may delay in complying with the request only if the person is in detention for an indictable offence and if an officer of at least the rank of superintendent authorises the delay. Delay is permitted only for up to 36 hours from the beginning of the person’s detention. The allowable reasons for delay are that there are reasonable grounds for believing that the exercise of the right would be likely: — — — —

to lead to interference with evidence or witnesses; to lead to serious loss of property; to lead to the alerting of other suspects; or to hinder the recovery of property obtained as a result of the offence or recovery of the benefit of criminal conduct.

Questioning Suspects and Witnesses

77

Article 57 also entitles a detained person to have someone informed that he or she has been arrested, subject to the same grounds for delay as in article 59. Arrested persons have no absolute right to be told of these entitlements under articles 57 and 59, but the Code of Practice says that they should be told. Articles 57 and 59 specifically exclude from their scope persons arrested or detained under the Terrorism Act 2000, but that Act itself confers on such persons the right to consult a solicitor privately and to have someone informed of the fact that they have been arrested if they make those requests (Sch 8, paras 6 and 7). The detainee must be informed of these rights as soon as practicable after being arrested. The police may delay in complying with the requests only if such delay is authorised by an officer of at least the rank of superintendent and the delay must not extend beyond 48 hours (not 36 hours as in non-terrorist cases) from the beginning of the detention. The grounds of delay are broader than those allowed under article 59 of the PACE Order, as they allow delay if it would interfere with the gathering of information about the commission of an act of terrorism, or if it would lead to the alerting of any person and thereby make it more difficult to prevent an act of terrorism or to apprehend a person in connection with an act of terrorism. The Northern Ireland courts have held that it is sufficient that the police reasonably believe that there is a real risk of a legal adviser being used as an unwilling agent to convey information of use to ‘terrorists’ (R v Harper, 1990; R v Cosgrove and Morgan, 1994). R v Sandhu (2009) provides an example of a solicitor using information garnered in his professional capacity, including during interviews with prisoners, to commit serious criminal offences. He was convicted following a plea of guilty to charges including perverting the course of justice and incitement to murder. The right of access to a lawyer has been described in one English decision as ‘one of the most important and fundamental rights of a citizen’ (R v Samuel, 1988). But the English courts appear to require some causal connection between any breach of the right and any resulting confession before they are inclined to exclude confessions on the grounds of denial of the right of access to a lawyer, and the Court of Appeal of Northern Ireland has approved of this approach (R v Harper, 1990; R v McWilliams, 1996). The Northern Ireland courts have, however, recognised that the decision of a police superintendent to delay access to legal advice or to delay a suspect’s right to have someone informed of the detention is clearly one by an official which affects public rights and is therefore open to judicial review (Re Duffy’s Application, 1992; Re McKenna’s Application, 1992). Lord Millett, one of the majority in Cullen v Chief Constable of the RUC (2003), re-emphasised that an unlawful denial of access to a lawyer is remediable by judicial review, and noted that ‘the failure to give reasons for an adverse decision is a paradigm example of a procedural defect which can form the basis of a challenge by way of such review’. Under the Human Rights Act 1998 the courts must now also give effect to Convention rights and the European Court of Human Rights (ECtHR) has in recent years emphasised the existence and significance of the right to have access to legal advice during detention for questioning. In Murray (John) v UK (1996) the

78

John Jackson, Fiona Doherty and Malachy McGowan

ECtHR held that the denial of legal advice for 48 hours in combination with the right of silence provisions in the Criminal Evidence (NI) Order 1988 amounted to a violation of Article 6 of the ECHR. After being cautioned under the Order, the applicant had been interviewed 12 times without access to a solicitor. The Court held that, even though the restrictions on legal advice had been lawfully exercised, they were capable of violating the fair trial provisions in Article 6. The Court said that the scheme contained in the 1988 Order was such that it was of ‘paramount importance’ for the rights of the defence that an accused had access to a lawyer at the initial stages of police interrogation. In Magee v UK (2001) the ECtHR followed this decision in declaring that there is a right, implied by Article 6, to have the assistance of a lawyer from the initial stages of police questioning. The right can be restricted but only for good cause and the Court considered that the conditions of interrogation at Castlereagh holding centre in Belfast were such that the applicant should have been allowed access to a solicitor from the outset in order to counterbalance those conditions. The question in every case is whether any restriction of this right, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (see Lord Millett in Cullen v Chief Constable of the RUC, 2003). Statistics illustrate that in recent years solicitors are rarely denied access to suspects detained under the terrorism provisions when suspects have requested this. Legal challenges have instead centred on the refusal to allow solicitors to be present during police interviews. Over a number of years the Northern Ireland courts refused to recognise any such right of legal access to police interviews in terrorist cases (eg Re Russell’s Application, 1996). This approach was endorsed by the House of Lords in Ex parte Begley (1997), although their Lordships considered that the police had a discretion to allow solicitors to be present in exceptional circumstances and that the application of a fixed policy of refusing solicitors access to interviews would be unlawful. Following consideration of the issue in the light of Article 6 and European Convention case law, the Court of Appeal of Northern Ireland has held that whilst no general rule requires a legal representative to be present during every police interview of a criminal suspect, where a solicitor has not been present an assessment has to be made of the particular facts in order to decide whether a breach of Article 6 arose (R v Blaney, 2004). Whilst Article 6(3) normally requires an accused to have access to a lawyer at the initial stages of an interrogation, this right may be subject to restriction for good cause and the question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. In R v Blaney (2004), where a disadvantage accrued to the interviewee by the drawing of inferences at his subsequent trial, the fact that he had not had the benefit of legal advice at the material time was said to be more likely to give rise to a breach of Article 6. The Court added that to ensure a fair trial it will ‘almost invariably be necessary … that a suspect receive legal advice before he is interviewed. This is especially so where the possibility of an adverse inference being drawn against the interviewee on a subsequent trial

Questioning Suspects and Witnesses

79

exists.’ However, the court also said it would be ‘quite wrong’ to assume that a fair trial could never be achieved in such circumstances: it will depend on the special features of the proceedings involved and on the circumstances of the case. The right to have a legal representative present during police questioning now has to be read in the light of more recent case law of the ECtHR. In a path-breaking judgment which gave stronger expression to the general right of access to a lawyer during police questioning, the ECtHR held in Salduz v Turkey (2008) that: in order for the right to a fair trial to remain sufficiently ‘practical and effective’ … Article 6(1) requires that, as a general rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police unless it is demonstrated in the light of the particular circumstance of each case that there are compelling reasons to restrict this right.

A unanimous seven judge panel of the UK Supreme Court in Cadder v HM Advocate (2010) confirmed that the ECHR requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed unless in the particular circumstances of the case there are compelling reasons to restrict the right. Although the Salduz ruling did not in itself indicate whether access to a lawyer from the first interrogation includes the right to have a lawyer physically present during the questioning of the suspect, subsequent jurisprudence seems to suggest that this is required. In Panovits v Cyprus (2008) the ECtHR considered that the lack of legal assistance during the questioning of a suspect would constitute a restriction of defence rights and in Nechiporuk Yonkalo v Ukraine (2011) the Court considered that the rights of the defence will be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used to convict the accused. The EU Directive on the Right of Access to a Lawyer in Criminal Proceedings (2013) requires Member States to ensure that when suspects are being questioned they have the right to have their lawyer present and participating effectively, although the UK has decided to opt out of this Directive. PACE Code H recognises that a terrorist suspect’s right of access to a solicitor extends to a right to have a solicitor present during police interviews, thereby ensuring that Code H is in line with PACE Code C in this respect. Code H now also provides, as does Code C, that where a person declines to speak to a solicitor in person, having been informed of the right to legal advice, the custody officer must point out that the right to legal advice includes the right to speak with a solicitor on the telephone and ask the person whether he or she wishes to do so. Unlike Code C, however, Code H permits an officer of at least the rank of Assistant Chief Constable to direct that any consultation between the detained person and a solicitor must take place in the sight and hearing of a member of the uniformed branch of the police service not below the rank of inspector, so long as the authorising officer forms the view that the consultation may result in any of the consequences mentioned above as regards grounds for delaying access to a solicitor altogether for up to 48 hours. This is despite the fact that the principle that a person must be able to consult his or her lawyer in confidence has been

80

John Jackson, Fiona Doherty and Malachy McGowan

described as ‘more than an ordinary rule of evidence … it is a fundamental condition on which the administration of justice as a whole rests’ (per Lord Taylor CJ in R v Derby Magistrates Court, ex parte B, 1995). The rule which prevents using as evidence what was said between legal advisers and their clients does, however, remain absolute, even if the evidence would exculpate another person accused of a criminal offence. Significantly though, even this privilege may become spent, and does not attach at all to communications made for the purpose of being guided or helped in the commission of a crime. The ECtHR has held that an accused’s right to consult with his or her lawyer in private is part of the basic requirements of a fair trial flowing from Article 6(3)(c) of the ECHR, but that it may be restricted where there is a ‘compelling reason’ to do so (Brennan v UK, 2001), the test remaining whether the restriction of the right has deprived the accused of a fair hearing. In Re McE (2009) the House of Lords concluded that the covert surveillance provisions of the Regulation of Investigatory Powers Act 2000 (RIPA) extended to consultations between clients and their lawyers which are normally covered by legal professional privilege, but that authorisation under the provisions governing directed (as opposed to intrusive) surveillance would be disproportionate and a breach of Article 8 of the ECHR. The Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultation) Order 2010 provides that any surveillance of legal consultations must be classified as intrusive. RIPA thereby overrides or qualifies the right both at common law and under the PACE Order to consult privately with a solicitor by permitting covert surveillance of such consultations (see the Home Office Code of Practice on Covert Surveillance, 2010, paras 3.1 to 3.10).

The Right of Silence Before Trial Research indicates that only a minority of suspects exercise their right to say nothing when questioned by the police, which suggests that the right may not be the valuable safeguard it is often claimed to be. One of the reasons for this is that there is nothing to stop the police asking questions and, even when a person indicates that he or she wishes to remain silent, there is no obligation on the police to stop asking questions until the point when the person is charged with an offence. The PACE and Terrorism Act Codes of Practice require police officers not to ask questions only once a suspect has been charged, unless the circumstances are exceptional. Section 24 of the Counter Terrorism Act 2008 will in future allow for post-charge questioning regarding terrorist offences when this is authorised by a magistrates’ court, with a requirement that the judge must specify the period during which the questioning is allowed and may impose such conditions as appear necessary in the interests of justice. The provision is not yet in force in Northern Ireland. There are also a number of laws which impose a duty to answer questions or provide information. For example:

Questioning Suspects and Witnesses

81

— Section 26 of the Official Secrets Act 1939 provides that a police officer of at least the rank of inspector may be authorised to require a person to furnish information regarding an offence under section 1 of the Act. — Under road traffic legislation, the police have a right to require the driver of a car to present his or her driving licence and, if the driver is alleged to be guilty of an offence under the legislation, to give his or her correct name and address and those of the owner of the car (Road Traffic (NI) Order 1981, arts 177 and 180). — Section 21 of the Justice and Security (NI) Act 2007 (formerly s 89 of the Terrorism Act 2000) provides that a member of Her Majesty’s forces or a police officer may stop and question a person to identity his or her identity or movements (see Chapter 3). — It is an offence to fail without reasonable excuse to disclose information about an act of terrorism or about people involved in terrorism (s 117 of the Anti-Terrorism, Crime and Security Act 2001). Friends and relatives of the 21/7 bombers and the Glasgow Airport bomber were convicted under this section. As a result of the Human Rights Act 1998, however, it is now open to citizens to challenge laws which impose direct duties on them to answer police questions, on the ground that the duties breach Article 6 of the ECHR. The ECtHR has held that the right to remain silent and not to incriminate oneself is an inherent part of the right to a fair trial (Funke v France, 1993). However, in a number of decisions courts have recognised that the right is not absolute. In Brown v Stott (2001) the Judicial Committee of the Privy Council held that it was not a breach of the right to a fair trial for a woman to be required to tell the police whether she had been driving her car at a certain time. In O’Halloran v UK (2007), the Grand Chamber of the ECtHR considered this ‘coercive measure’ and found it to be compatible with Article 6, noting that it was not a strict liability offence, and having regard to all the circumstances including the special nature of the road traffic regulatory regime and the limited information the individual was required to provide.

Enforcement of the Right of Silence The citizen’s right of silence in the face of police questioning has traditionally been enforced by two general common law rules. One was laid down in Rice v Connolly (1966), where the court held that silence cannot lead to a charge of obstructing the police in the execution of their duty. The second states that, at a trial, the prosecution and the trial judge should not suggest to the jury that an adverse inference may be drawn from an accused person’s silence when being questioned by the police. The only common law exception to this rule was where two persons are speaking on ‘even terms’ and one charges the other with something which the other says nothing to repel. In this instance the judge may make

82

John Jackson, Fiona Doherty and Malachy McGowan

some comment, but even then he or she must be careful, for it has been held that to ask the jury to consider whether the person’s silence in these circumstances indicates guilt or innocence is to short-circuit the intellectual process that has to be followed. Where the accuser is a police officer, the parties cannot normally be said to be on even terms, although everything depends on the circumstances.

Restrictions on the Right of Silence The most serious dent in the general rule that adverse inferences should not be drawn from silence is created by the Criminal Evidence (NI) Order 1988, which defines three situations in which adverse inferences may be drawn in court from an accuser’s silence before trial. Article 3 provides that when an accused relies in his or her defence on some fact which he or she failed to mention when questioned or charged by the police, then if the fact is one which the accused could reasonably have been expected to mention at that stage, the court or jury may draw such inferences from the failure as appear proper. The other two situations in which adverse inferences may be drawn are more limited. Article 5 provides that a court or jury may draw such inferences as appear proper where, after being arrested, a person fails to account to the police for the presence of an object, substance or mark on his or her person, or in a place where he or she was arrested, if the object, substance or mark is reasonably believed by the police to be attributable to the person’s participation in an offence. Article 6 permits inferences to be drawn from a refusal by a person when arrested to account for his or her presence at a particular place at the time the offence was committed. Codes of Practice C and H issued under PACE require that persons who are questioned by the police must be warned about the effect of article 3. In addition, the Codes require that, before a police officer questions a person about the matters in articles 5 and 6, he or she must inform the person that there is reason to believe that what has been found is attributable to the person’s participation in an offence or that the person’s presence at the time of the alleged offence is attributable to his or her participation in it. The person must then be asked to account for what has been found or for his or her presence and warned that a failure to do so may result in a court deriving such inferences from the failure as appear proper. The courts have in a number of decisions drawn adverse inferences from an accused person’s failure to respond to police questioning. In one of the first cases article 3 was invoked against the National Director of Publicity for Sinn Féin when he refused to reply to police questions after being arrested with seven others for unlawfully detaining a man suspected of being a police informant. The accused denied the charge and explained his silence on the ground that as a Sinn Féin spokesperson he had advised other people to remain silent and had to maintain that stance himself. But the Lord Chief Justice held that the failure to speak gave rise to very strong inferences against him that the innocent explanation which he offered in court was false (R v Martin, 1991).

Questioning Suspects and Witnesses

83

One of the accused in this case subsequently claimed that the drawing of inferences from silence violated Article 6 of the ECHR, as it infringed his privilege against self-incrimination. In Murray (John) v UK (1996) the ECtHR held that the right to remain silent under police questioning and the privilege against selfincrimination were recognised international standards which lay at the heart of a fair procedure under Article 6. But the Court added that the right of silence was not absolute and it could not prevent a court taking into account an accused’s silence in situations which clearly called for an explanation. On the facts of the case before it, the Court held that, having regard to the weight of the evidence against the applicant, the drawing of inferences from his refusal to explain his presence in the house where the alleged informer was being held captive was a matter of common sense and could not be regarded as unfair and unreasonable. As mentioned above, however, the failure to grant the applicant access to legal advice before he was questioned by the police did constitute a violation of Article 6, as the effect of the 1988 Order makes it vital that an accused has access to a lawyer at the initial stages of police interrogation. Subsequent decisions of the ECtHR have emphasised the limited impact which the drawing of inferences ought to have in contributing towards a defendant’s conviction. In Averill v UK (2000) the court considered that the extent to which adverse inferences can be drawn from an accused’s failure to respond to police questioning must be necessarily limited. The court ventured the view that, while it may no doubt be expected in most cases that innocent persons would be willing to cooperate with the police in explaining that they were not involved in any suspected crime, there could be reasons why in a specific case an innocent person would not be prepared to do so. In Averill v UK itself the prosecution case against the accused was strong and in the circumstances the court held that the applicant could have been expected to provide answers to questions put to him in custody. These provisions do not completely erode the right of silence. Aside from the instances under articles 5 and 6 which permit inferences to be drawn from a failure to account for particular facts, no adverse inference may be drawn if the accused does not rely on any fact in his or her defence but remains silent throughout. However, the concept of a ‘fact’ being relied on has been interpreted widely, encompassing evidence elicited through the testimony of another witness (R v Jones, 2007) or an account put by defence counsel to a prosecution witness in cross-examination (R v Webber, 2004). The practice of relying on a prepared statement in interview rather than answering police questions prevents an adverse inference from being drawn, provided the statement discloses the full set of facts later put on the accused’s behalf before the jury (R v Knight, 2003). An inference may be drawn where a defendant later relies on a fact not included within the statement (R v Mohammad, 2009). Failure to mention a fact that supports an entirely plausible innocent explanation for incriminating evidence may strengthen the view that an adverse inference should be drawn that the accused knew the innocent explanation to be false (R v Jones, 2007; R v McCartan and Skinner, 2008).

84

John Jackson, Fiona Doherty and Malachy McGowan

The ECtHR has, however, been anxious to give particular weight to a solicitor’s advice not to answer questions. In Condron v UK (2000), where the solicitor had advised the applicants not to answer questions because they were suffering from the symptoms of heroin withdrawal, the trial judge had nevertheless directed the jury that it was open to them to draw an adverse inference from their silence. The ECtHR held that this was a violation of the applicants’ right to a fair trial because the judge’s direction had left the jury at liberty to draw adverse inferences even if they were satisfied that the applicants remained silent because of the advice of their solicitor. The judge should have directed the jury that, if they believed the applicants’ silence could not sensibly be attributed to their having no answer to the questions, or none that would stand up in cross-examination, they should not draw an adverse inference. The English Court of Appeal, in relation to an identical provision, has regularly held that the question for the jury is whether the facts relied on at trial could reasonably have been expected to have been mentioned at interview. Whilst the fact that there was legal advice to remain silent must be accorded appropriate weight in this assessment, it cannot completely immunise a suspect from an adverse inference, as it may have been unreasonable to rely on the advice or the advice may not have been the true reason for the silence if the accused in reality had remained silent because he or she had no satisfactory explanation to give (R v Beckles, 2004). The question for the jury is whether, regardless of advice genuinely given and genuinely accepted, an accused has remained silent not because of that advice but because he or she had no satisfactory explanation to give (R v Hoare, 2004).

Questioning at the Trial The general rule, subject to an important exception in the case of an accused person, is that if a person is a ‘competent’ witness, that is, if his or her evidence may lawfully be admitted by the court, then that person may be lawfully compelled by the court to give evidence or to suffer the penalty for contempt of court for not giving evidence. This means that he or she will be required to answer any questions put in court, unless some objection is taken by a party that the question cannot be answered on the ground that it would infringe the rules of evidence such as the hearsay rule, the rule prohibiting opinion evidence, or the rules relating to character evidence.

Privileged Communications The witness can also object to answering a question if able to claim a ‘privilege’. There are privileges connected with self-incrimination, professional legal communications and ‘without prejudice’ negotiations. The privilege against self-incrimination arises when a witness who is compelled to give evidence may refuse to answer a question if there is, in the opinion of the court, a danger that the answer would expose the witness to prosecution for a

Questioning Suspects and Witnesses

85

crime. The privilege extends to answers which would incriminate the witness’s spouse. No adverse inference should be drawn by the judge or jury from the fact that the privilege is claimed. Accused persons who elect to give evidence in their trial may not, however, rely on the privilege when questions are put to them in cross-examination that would tend to incriminate them as to the offence charged. Professional legal privilege extends to all communications passing between a client and his or her legal adviser in the course of seeking or giving legal advice. Also covered are communications between one party, or his or her legal adviser, and a third party, which are made for the purpose of pending litigation. In addition, all good faith offers of compromise between parties are privileged where litigation is pending or contemplated. However, the right to legal professional privilege has always been covered by ‘iniquity’ exceptions. Otherwise, where there are sufficiently strong grounds to suspect that the privilege was being abused, an unjustified immunity would be conferred on dishonest lawyers. Consequently, as noted above (page 80), the surveillance provisions of RIPA apply to such consultations. Even with this exception it has been strongly indicated that it would be contrary to basic rules of fairness to use evidence obtained from such surveillance against the accused at trial (In re McE, 2009). A husband or wife could formerly also refuse to disclose any communication made to his or her spouse during their marriage, but this privilege ceased to have effect when article 79(8) of the PACE Order 1989 came into force. Communications between doctors and their patients have been treated ‘in pari materia [i.e. on an equal footing] with legal consultation’, partly as they will usually be covered by litigation privilege (Re McE, 2009). Communications between journalists and their informants are not privileged. Section 10 of the Contempt of Court Act 1981, however, states that no court may require a person to disclose the source of information contained in a publication for which he or she is responsible unless that disclosure is necessary in the interests of justice, or national security, or for the prevention of disorder or crime (see also Chapter 10). The journalist Suzanne Breen successfully defended her right to keep her sources confidential in a recent case brought against her by the Police Service of Northern Ireland: Re Galloway’s Application for Judicial Review (2009). One issue which Northern Ireland’s courts have not yet had to face is whether communications between priests and penitents are privileged. The courts in England do not seem to recognise such a privilege but the High Court in the Republic of Ireland has held that communications made in confidence to a parish priest by his parishioners are privileged (Cook v Carroll, 1945, Johnston v Church of Scientology Mission Dublin, 1999).

Evidence Through Video Links Article 80A of the PACE Order allows a witness outside the UK to give evidence by live television link where the court gives permission for this. Article 81 also allows certain categories of witness (other than the accused) who are within the

86

John Jackson, Fiona Doherty and Malachy McGowan

jurisdiction to give evidence by live link. These include witnesses who will not give evidence otherwise through fear, and child witnesses. The categories of witness who can give evidence by live link were extended by the Criminal Evidence (NI) Order 1999, which provides for a number of ‘special measures’, including evidence by live link and video-recorded evidence, to be directed for witnesses who are eligible for assistance on grounds of age, incapacity, fear or distress about testifying. Those eligible include witnesses who at the time of hearing: — are under 17 years of age (see Chapter 21); — are suffering from mental disorder; — are suffering from a significant impairment of intelligence and social functioning; — have a physical disability or are suffering from a physical disorder; or — are likely to give evidence of diminished quality by reason of fear or distress.

Accused Persons and their Spouses as Witnesses Accused persons have been competent to give evidence on their own behalf in Northern Ireland since 1923, but an accused person is not a competent witness for the prosecution in any criminal case. If the Public Prosecution Service wishes to rely on the evidence of an accused person who is prepared to give evidence against a co-accused, it has four options available to it. First, it can file a nolle prosequi with reference to his or her case, that is, discontinue the prosecution. Second, it can state that no evidence will appear against the accused, in which case an acquittal will follow. Third, it can obtain an order for separate trials and, fourth, it can get the accused to plead guilty, in which case it is desirable that he or she be sentenced before being called on behalf of the prosecution. Article 79 of the PACE Order changed the law by making the spouse of an accused competent to give evidence for the prosecution and for a co-accused and compellable for the prosecution and a co-accused where the offence charged involves an assault on their spouse or civil partner or a person under 17, or if the offence charged is a sexual offence alleged to have been committed in respect of a person under 17.

Informers as Witnesses Some years ago a number of ‘terrorist’ trials in Northern Ireland proceeded on the basis of accomplice evidence. The accomplices involved were called ‘supergrasses’ in view of the large number of defendants implicated by their evidence. These trials raised a number of concerns, notably that many of the supergrasses were granted complete or partial immunity from prosecution or were given promises of having to serve only short sentences, and that their testimony was in a number

Questioning Suspects and Witnesses

87

of cases uncorroborated (ie not backed up by other evidence). The convictions were almost all overturned on appeal and there were no further supergrass trials until R v Haddock (2012), which followed the creation of a statutory framework for the treatment of such witnesses under the Serious Organised Crime and Police Act 2005 (SOCPA). Prior to this legislation informers had been competent to give evidence against accused persons, but accomplices (ie an actual participant in the crime which the accused is alleged to have committed) could not be called on behalf of the prosecution unless the accomplice had already been prosecuted or it was made clear that a current prosecution would be discontinued, in recognition that a person against whom proceedings were pending would have a strong motive to make his or her story sound as convincing as possible when giving evidence against co-participants. In fact, of course, even when an accomplice has been prosecuted, there may still be a considerable inducement to make his or her story sound convincing, such as when he or she has made a deal with the authorities ensuring an early release from prison, police protection on release, or a financial reward. The trial judge has a rarely exercised discretion to exclude the evidence of an accomplice operating under ‘powerful inducements’.

The Position Under the Serious Organised Crime and Police Act 2005 Section 71 of SOCPA 2005 now provides that where a specified prosecutor (including the Director of Public Prosecutions for Northern Ireland) believes that for the purposes of the investigation or prosecution of any criminal offence it is appropriate to offer a person immunity from prosecution for any offence, he or she may give the person an ‘immunity notice’. Such a notice prohibits proceedings being brought against that person for an offence specified in the notice except in circumstances specified in the notice, and will cease to have effect if the person fails to comply with any of these conditions. Section 72 further allows a specified prosecutor to offer any person a ‘restricted use undertaking’, where he or she believes it is appropriate for the purposes of the investigation or prosecution of any offence. Such a notice prevents information described in the undertaking being used against the person in any proceedings except in the circumstances specified in the undertaking, but again this ceases to have effect in the event that the person fails to comply with the conditions specified. Section 73 allows for the reduction in sentence of a defendant who has pleaded guilty and, pursuant to a written agreement made with a specified prosecutor, has assisted or offered to assist in relation to that or any other offence. In so doing the court may take into account the extent and nature of the assistance given or offered. In passing such a sentence the court must state in open court that it has passed a more lenient sentence than would otherwise have been passed, and

88

John Jackson, Fiona Doherty and Malachy McGowan

specify what the greater sentence would have been, or give written notice of this information to the prosecutor and the defendant where the court thinks it would not be in the public interest to disclose that the sentence has been discounted. This provision constitutes statutory acceptance, however ‘unpalatable’, that evidence from criminals is sometimes essential to the conviction of others involved in serious crimes, and that the willingness of criminals to give evidence that may lead to the conviction of others, usually of very serious crimes, has to be recognised by some reduction in their sentence. (R v Burcombe, 2008)

Under section 74 a specified prosecutor may refer certain cases back to the sentencing court if the convicted person is still serving his or her sentence and the prosecutor believes the referral to be in the interests of justice. Where a person has received a discounted sentence in consequence of a written agreement to assist a prosecutor, following which he or she knowingly fails to so assist and the court is satisfied that there has been such a failure, it may substitute a greater sentence which it thinks appropriate (but not exceeding that which it would have passed but for the agreement). Where an individual following sentence subsequently offers to provide any or further assistance to the prosecutor or investigator in pursuance of a written agreement, the court may take into account the extent and nature of the assistance given or offered and substitute an appropriate lesser sentence. The level of discount will depend on the quality, quantity, accuracy and timeliness of the information given, the offender’s willingness to testify if required and the extent to which any cooperation with the authorities has put the offender or his or her family at serious risk of reprisal. The discount has to be set at a level appropriate to show to offenders that it was worthwhile to provide such assistance (R v Haddock, 2012). The normal level of discount will be a reduction of between one-half and two-thirds of the sentence, and will only in exceptional cases exceed three-quarters of the sentence that would otherwise have been passed (R v P, R v Blackburn, 2007). There can be no objection in principle to the admission of evidence by a defendant who has entered into a SOCPA agreement, which does not differ from the treatment of such evidence following agreement under the procedures which previously existed at common law. The English Court of Appeal therefore rejected the contention that it was an abuse of process to rely on evidence obtained following a SOCPA agreement, or that such evidence had such an adverse effect on the fairness of proceedings so as to call for exclusion under PACE, even where such evidence was of central importance to a prosecution. The decision to accept a plea of guilty to manslaughter even though it was neither supported by the account of the witness nor consistent with the way the Crown advanced its case of murder has been described as ‘pragmatic’ and, despite the absence of a coherent legal basis for the plea, ‘room for pragmatism’ was inherent in the SOCPA regime and did not provide a cause for excluding such evidence, although it reinforces the need

Questioning Suspects and Witnesses

89

to ensure that the finder of fact is properly directed in relation to such evidence (R v Daniels, 2011). The dangers inherent in such evidence must be met by ensuring that the jury is given a proper warning of those dangers and told of the need to take them into account when assessing the evidence. The first task for a finder of fact is to determine whether or not the witness ‘is so lacking in credibility and thus so unworthy of belief that their evidence must be rejected’ (R v Haddock, 2012). If this hurdle is overcome there is no longer a requirement that accomplice evidence be corroborated or that the tribunal of fact warn itself of the danger of acting on such uncorroborated evidence, following the abolition of such requirements under article 45 of the Criminal Justice (NI) Order 1996. Nevertheless, a judge retains discretion to warn the finder of fact to exercise caution whenever he or she considers it appropriate to do so, whether in respect of an accomplice, a complainant or any other witness. The principles governing the issue of such a warning are contained in Lord Taylor CJ’s judgment in R v Makanjuola (1995), where he stressed that it is for the judge to decide the strength of the warning, and that the Court of Appeal would be disinclined to interfere with the judge’s discretion unless it was exercised in a way that no reasonable judge could have done so. By way of illustration as to when a warning will be necessary Lord Taylor CJ added: Where, however the witness has been shown to be unreliable, [the judge] may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness’s evidence.

In coming to the decision to warn himself and seek supportive evidence in relation to the evidence of two accomplices giving evidence following a section 73 SOCPA agreement, the trial judge in R v Haddock (2012), Gillen J, considered that: the witnesses were accomplices of very bad character whose memories had been subject to the ravages of drug and alcohol abuse; they had lied to the police and the court about their motivation in coming forward and in their recitation of events; they may have been prone to confuse the presence of some of the accused and individual events because of the regularity of their presence together and on occasions wrongfully implicated people in crimes which they did not commit; they confused the roles and words of many of the accused throughout their evidence; they clearly colluded at times; their evidence had been contradicted by independent evidence on many occasions; and the demeanour of the witnesses when giving evidence was unconvincing. Consequently, in this first supergrass trial since the 1980s, none of the 13 defendants who together faced more than 30 charges were convicted on the basis of the supergrass evidence (one defendant was convicted of possessing items intended for terrorism, largely as a result of admissions he made at interview). Nevertheless, Gillen J emphasised that his judgment was neither a comment nor a criticism of the SOCPA regime, and emphasised that

90

John Jackson, Fiona Doherty and Malachy McGowan

it did not preclude the possibility of guilty verdicts being obtained in future cases with less flawed witnesses.

The Accused ’s Right of Silence at the Trial Article 4 of the Criminal Evidence (NI) Order 1988 provides that the court or jury may, in determining whether the accused is guilty of the offence charged, draw such inferences as appear proper from the accused’s failure to give evidence at the trial or from his or her refusal, without good cause, to answer any question. Before doing this, however, the court must at the conclusion of the evidence for the prosecution satisfy itself that the accused is aware that a failure to give evidence or to answer questions may result in this consequence. The effect of the article is to make it less attractive for accused persons to exercise their right of silence at the trial and to limit the right of an accused person to force the prosecution to prove the offence charged unaided by the accused. It should be noted, however, that the Order precludes the drawing of inferences where it appears to the court that the physical or mental condition of the accused makes it undesirable for him or her to give evidence. It is only proper to interfere with the trial judge’s conclusion as to whether the defendant’s learning difficulty made it undesirable for him to give evidence, and thus whether an adverse inference could be drawn under the Order, if no reasonable judge could have come to that conclusion (R v O ’ Donnell, 2010). In a number of cases the courts have drawn adverse inferences against accused persons who have not testified. In Murray v DPP (1994) the House of Lords upheld the view of the Court of Appeal in Northern Ireland that the 1988 Order changed the common law regarding the comments and inferences which could be drawn from an accused’s silence at trial. The House of Lords held that, once the prosecution has made out a prima facie case and the defendant refuses to testify, a judge or jury may draw such inferences from his or her silence as are dictated by common sense and may in a proper case draw the inference that he or she is guilty of the offence charged. The Specimen Direction to be given should include a direction that ‘the jury should not draw an adverse inference unless they consider that the prosecution’s case is such that it clearly calls for an answer’ (R v O’Donnell, 2010). In R v Haddock (2012) Gillen J made it clear that: — a court cannot convict solely on the basis of an inference drawn from a defendant’s silence; — if parts of the prosecution case are so weak or of such little evidential value that they do not call for an answer then failure to address these matters cannot justify an inference of guilt; — the inference may be regarded as a further evidential factor in support of the prosecution’s case, but should not be held against the defendant unless the only sensible explanation was that he or she had no answer to the case which could have withstood cross-examination;

Questioning Suspects and Witnesses

91

— it remains open for a judge to direct or advise a jury against drawing such inference if the circumstances of the case justify such a course; and — where the defendant has raised a particular factual or legal defence in interview or in cross-examination by counsel on his or her behalf, failure to give evidence to support and be cross-examined upon it is significant and should be given weight. Where an accused has previous convictions and knows that he or she is liable to be cross-examined so as to elicit those convictions, it is not inappropriate to give the jury a direction that an adverse inference may be drawn against him or her if he or she decides not to give evidence. There remains an overriding discretion in the trial judge to decline to allow convictions to be put or inferences to be drawn where he or she thinks it unfair in the circumstances of the particular case (R v Becouarn, 2005). Article 78 of the PACE Order 1989 abolished the right of an accused person to make a statement from the dock without swearing an oath. The advantage to an accused of making an unsworn statement was that it permitted him or her to put a defence to the jury without having to submit to questions in cross-examination. The disadvantage was that the judge and jury were unlikely to be impressed by a defendant who did not submit to questioning.

Useful Contacts Criminal Cases Review Commission Alpha Tower Suffolk Street Queensway Birmingham B1 1TT tel: 0121 623 1800 www.justice.gov.uk/about/criminal-cases-review-commission Police Ombudsman for Northern Ireland New Cathedral Buildings Writers’ Square 11 Church Street Belfast BT1 1PG tel: 028 9082 8600 www.policeombudsman.org Police Service of Northern Ireland Headquarters Brooklyn

92

John Jackson, Fiona Doherty and Malachy McGowan

65 Knock Road Belfast BT5 6LE tel: 028 9065 0222 www.psni.police.uk Public Prosecution Service Headquarters Belfast Chambers 93 Chichester Street Belfast, BT1 3JR tel: 028 9054 2444 www.ppsni.gov.uk

5 Complaints Against the Police MARY O’RAWE

The organisation set up to deal with complaints against the police by members of the public is the Office of the Police Ombudsman for Northern Ireland (OPONI). The Office is separate from the police and the Northern Ireland Policing Board. Instead, it is directly accountable to the Northern Ireland Assembly, though it is also required to have regard to guidance given by the Department of Justice. OPONI has been receiving complaints since 6 November 2000. Its budget for the financial year 2013–14 is £7,163 000, with a further allocated £2,085,000 for ‘historical’ work. Its contact details are shown in the list of useful contacts at the end of this chapter. A complaint can be lodged: — — — — — — —

in person (9am–5pm, Monday–Friday; no appointment is necessary); by post; by phone; by fax; by email; by filling in an online complaints form; through a solicitor (legal aid may be available, depending on a person’s means); — by making a complaint at a local police station, to the Northern Ireland Policing Board, or to the Minister of Justice, all of whom should forward any complaint immediately to OPONI; or — by having a friend or other representative do any of the above on your behalf. Facilities are in place to assist those whose first language is not English or who require other communication aids: information is available online in a number of languages at www.policeombudsman.org. The website also contains information relating to other aspects of the individual complaint and investigation process, and to OPONI’s work and publications more generally. A short film is available on the website explaining the work of OPONI. Although the system for handling complaints against the police forms only one small aspect of police accountability, the Patten Commission, which reported in 1999 on new arrangements for policing in Northern Ireland, saw this office as ‘key to the effective governance of Northern Ireland’.

94

Mary O’Rawe

That said, it should be remembered that OPONI does not operate in a vacuum. The Policing Board, which replaced the former Police Authority for Northern Ireland in 2001, equally has an important role in holding the Police Service of Northern Ireland (PSNI) to account, and might provide a useful channel for taking certain governance concerns forward. There is not scope within this chapter to look in any detail at the powers and potential of the Policing Board, but it should be mentioned that the Policing Board acts as the disciplinary authority for the most senior PSNI officers. Also, under the Police (NI) Act 2000, the Policing Board can ask the Chief Constable for reports on any area of PSNI activities. If not satisfied, the Board can begin an inquiry into the matter in question. Although the Chief Constable can apply for permission to refuse to provide a report or to conduct an inquiry, this can be done only on very specific grounds and within a restricted timescale. Further detail can be found on the Policing Board’s website: www.nipolicingboard.org.uk or by phoning 028 9040 8500. Since 1 April 2012, local policing concerns can be raised with Policing and Community Safety Partnerships (PCSPs) These bodies are jointly funded by the Policing Board and the Department of Justice. If a member of the public has a complaint or concern about OPONI’s administration or the handling of a particular complaint, and wishes to take this beyond the organisation’s internal procedures, concerns can be addressed in writing to the Minister of Justice, Minister’s Office, Block B, Castle Buildings, Belfast BT4 3SG.

Origin and Aims of OPONI Although widely believed to be an emanation of the Patten Commission on Policing, OPONI was actually established on foot of proposals by Dr Maurice Hayes in his 1997 report, A Police Ombudsman for Northern Ireland? The Hayes recommendations echoed in several respects a number of previous reports by the CAJ, calling for a completely independent mechanism to investigate complaints against the police. In keeping with the tenor and logic of the CAJ’s findings, Hayes recommended that complaints against the police should be investigated, not by the police themselves, but by a new and independent office. The watchwords of this office were to be ‘independence, independence, independence’, and Hayes proposed a raft of measures to ensure that this independence could be realised in practice. These included the power to undertake investigations in the public interest, even in the absence of a specific complaint. Initial legislation establishing OPONI, the Police (NI) Act 1998, was drawn up while the Patten Commission was still carrying out its deliberations. The legislation failed to replicate key aspects of Hayes’ proposals, as regards safeguarding the independence of OPONI and the extent and robustness of its powers. It ultimately took an endorsement by the Patten Commission of Hayes’ original proposals,

Complaints Against the Police

95

extensive lobbying and two further Police Acts, in 2000 and 2003, to put OPONI on a footing similar to that recommended by Hayes. Hayes recognised that faith in complaint processes can easily be diminished where they revolve too exclusively around individual complaints against individual officers, and where lengthy and overly legalistic processes often prove incapable of substantiating genuine complaints to any real degree. OPONI has tried to counteract some of these traditional failings by recognising the need for informal resolution and mediation processes in appropriate cases and by being alert to the fact that individual complaints might be symptomatic of broader institutional or systemic failings, which need to be addressed by further research and recommendations to change specific policies and practices. The Police (NI) Act 1998 (as amended) directs OPONI to: — — — — — — — —

—

secure an efficient, effective and independent complaints system; secure the confidence of the public and members of the police force; observe all requirements as to confidentiality; receive complaints and other referred matters and decide how to deal with them; receive and record policy complaints and refer them to the Chief Constable; make recommendations to the Director of the Public Prosecution Service (PPS) for criminal action; make recommendations and directions in respect of disciplinary action against police officers; notify the Department of Justice (and the Secretary of State in some circumstances), the Policing Board and the Chief Constable of the outcome of certain complaints, referred matters and any investigation which the OPONI initiates without a complaint; and report to the Department of Justice annually.

Under the terms of the Police (NI) Act 2000 (as amended), OPONI must also: — carry out inquiries as directed by the Department of Justice or Secretary of State in certain circumstances; and — supply statistical information to the Policing Board. The Police (NI) Act (2003), finally, gives OPONI power to: — investigate a current practice or policy of the police if the practice or policy comes to his or her attention under the Act and he or she has reason to believe that it would be in the public interest to investigate the practice or policy. The operation of OPONI is also affected by several pieces of primary legislation over and above the Police (NI) Acts. These include the Human Rights Act 1998, the Northern Ireland Act 1998, the Regulation of Investigatory Powers Act 2000 (RIPA) and the Freedom of Information Act 2000. A number of Orders in Council also apply, such as the Police and Criminal Evidence (NI) Order 1989

96

Mary O’Rawe

(as amended) and the Policing (Miscellaneous Provisions) (NI) Order 2007. On top of these, a raft of regulations has been enacted, making provision for specific aspects of the complaint system. These include: — the Police and Criminal Evidence (Application to Police Ombudsman) Order (NI) 2000; — the RUC (Conduct) Regulations 2000; — the RUC (Unsatisfactory Performance) Regulations 2000; — the RUC (Appeals) Regulations 2000; — the RUC (Complaints etc) Regulations 2001; — the RUC (Complaints) (Informal Resolution) Regulations 2000; — the RUC (Conduct) (Senior Officer) Regulations 2000; — the PSNI (Conduct) Regulations 2003; — the PSNI (Appeals) (Amendment) Order 2004; and — the PSNI (Conduct etc) (Amendment) Order 2004.

What Constitutes a Complaint ? The Police Ombudsman has the power to investigate any complaint from a member of the public about how police officers behave in the course of their duty. As well as the PSNI, OPONI deals with complaints relating to Larne Harbour Police, Belfast Harbour Police, Belfast International Airport Police, Ministry of Defence Police in Northern Ireland, and UK Borders Agency personnel when they are using police powers in Northern Ireland. A complaint could involve anything from a minor breach of the PSNI Code of Ethics by a police officer to an allegation of criminal activity. The Ombudsman cannot, however, investigate: — conduct which has already led to criminal or disciplinary action, unless there is new evidence that was not available at the time of the original investigation; — complaints about off-duty officers, unless the fact of being a police officer is relevant to the complaint; — complaints about non-police officers acting with police officers or separately in a policing role (eg soldiers or agents of MI5); — complaints about traffic wardens or other civilians who are working for the police; — complaints about the direction and control of the police by the Chief Constable; — complaints which are not made by or on behalf of a member of the public; — anonymous complaints; — complaints made ‘out of time’ (ie more than 12 months after the event, except in grave and exceptional circumstances where an investigation is warranted in the public interest);

Complaints Against the Police

97

— vexatious, oppressive or repetitious complaints; — complaints where the complainant refuses to cooperate with an investigation; — complaints where there is a lack of information necessary to conduct an investigation; and — complaints which have been withdrawn by the complainant. If a complaint is outside his or her legislative remit, the Police Ombudsman can, as a matter of discretion, refer it to the Chief Constable, the Policing Board or the Minister of Justice and notify the complainant accordingly. These bodies can then deal with the issue (or not) as they see fit. If the behaviour or issue reported is deemed not to come within the definition of a complaint that can be investigated by OPONI, currently the only way to challenge this formally is through an application for judicial review (see Chapter 2). The fact that a complaint can come to the Ombudsman only from a member of the public is problematic in that, historically, it has been complaints from other police officers which have stood the best chance of being substantiated and of leading to an officer being disciplined. Also, in terms of policy and practice, police officers are often best placed to note potential and actual shortcomings that might benefit from independent scrutiny. Complaints from police officers, where they occur, are still investigated internally within the PSNI’s Professional Standards Department. From the time of her first annual report (November 2000–March 2002) as the first Police Ombudsman for Northern Ireland, Nuala O’Loan expressed serious concern as to OPONI’s limitations where the alleged wrongdoing involves police officers acting with non-police officers, be they army, Security Service operatives, or civilian informants or agents. Despite this obviously unsatisfactory situation, in such cases OPONI is able to investigate only the role of the police officers involved. Where the complaint concerns alleged criminal activity, this could result in the PSNI carrying out a parallel investigation into the matter in respect of the role of civilians, army or Security Service personnel involved, while having no remit to consider the behaviour of police officers. The Ombudsman has called for the creation of a power that would allow OPONI to recommend the prosecution of persons engaged in joint criminal activity with police officers. In the meantime, such investigations are very likely to continue to prove ineffective as they cannot encompass all aspects of the behaviour complained about. The transfer of responsibility for national security to MI5 in 2007 curtailed the reach of OPONI still further in this and other regards, effectively blocking lines of inquiry into the murkier aspects of intelligence-gathering and the handling of informants. Another problem with the legislative definition of complaint is that, in many ways, it reduces the process to an examination of the conduct of an individual officer even though the alleged failings might well be symptomatic of an inappropriate police subculture, ineffective management, inadequate training or other organisational defects. Although individual responsibility is, of course, important, resources might be better allocated to acting on trends and patterns of complaints

98

Mary O’Rawe

rather than indulging in a highly bureaucratic and legalistic procedure to discipline a series of individuals. Changes ushered in by the Police (NI) Act 2003 have gone some distance in addressing this issue, but concerns remain.

Types of Complaints OPONI currently receives well over 3,000 complaints per year, which may, in turn, contain multiple allegations. Figures for 2013–14 record 3,731 complaints received, comprising 6,089 allegations and reversing the downward trend of the previous four years. Complaints in relation to parading and demonstrations increased during 2012–13, largely due to incidents arising out the extensive flag protests in that year. The vast majority of complaints are directed against PSNI officers, but it is of note that the number of complaints against other agencies appears to be on the increase. The number of complaints against ‘designated civilians’, although statistically small, doubled in 2011–12. These are civilians who work for the police (eg as custody officers) and are officially ‘designated’ as falling within OPONI’s jurisdiction. In OPONI’s first year, allegations of oppressive behaviour (mainly assault) made up around 50 per cent of the total number of complaints, while allegations of failure of duty accounted for a further 23 per cent. These two categories are still the biggest, although failure of duty became the main type of complaint in 2012–13, followed by oppressive behaviour and incivility. According to the 2013 annual statistical report, the greatest proportion of allegations across police districts arose from District A (North and West Belfast). In 2011–12, the manner in which police conducted criminal investigations was the most common specified factor underlying complaints (24%). More than one-fifth (21%) involved arrest, whilst searches comprised a further 11 per cent. Some 39 per cent of allegations arose from police behaviour in police stations, 28 per cent from conduct on the streets and 20 per cent from incidents in people’s homes. In 2012–13, 20 per cent of complaints arose from criminal investigations and up to 20 per cent arose from arrests. Usually around 1 per cent of complaints arise from parades or demonstrations, but this increased to 5 per cent in 2012–13. Generally, each year about eight out of 10 officers who are the subjects of complaint are constables, the remainder being spread among the higher ranks. This is in proportion to the make-up of the organisation and results from the fact that constables are heavily involved in frontline duties. The number of officers who attracted three or more complaints in a rolling 12-month period decreased from 341 in 2019–10 to 213 in 2012–13. Figures from OPONI’s first annual report (November 2000–March 2002) indicated that 49 per cent of complaints received came from members of the Protestant community and 29 per cent from Catholics. The situation after a decade was more comprehensively set out in the Equality Monitoring Report

Complaints Against the Police

99

2006–11, which indicated that complaints had come in disproportionately high numbers from young men, ethnic minorities, single, separated, divorced or co-habiting people, people with disabilities, unemployed people, people with dependants and people who supported other political parties outside the five main Northern Ireland parties or did not support any party. There were lower than expected proportions of women, people with no religious beliefs, people not born in Northern Ireland and Sinn Féin voters.

Overall, 71 per cent of complainants in the period 2006–11 were male and 29 per cent female; 68 per cent were aged under 45, while only 4 per cent were aged over 65. As regards religious background, 39 per cent of complainants were Catholic, 22 per cent Presbyterian, 18 per cent Church of Ireland, 3 per cent Methodist, 6 per cent had other Christian beliefs, 1 per cent had other beliefs and 10 per cent had no religious belief. Some 97 per cent of complainants described themselves as white. Allegations of discriminatory behaviour comprised 1 per cent of complaints from white complainants and 8 per cent of complaints from complainants of another ethnic background. Nearly nine out of every 10 complainants were born in Northern Ireland. Failure in duty constituted the greatest proportion of allegations regardless of country of origin. There were no significant differences in types of allegations made as between persons with a disability and those without. Unemployed people, students and those not working because of a disability were more likely than other categories to make allegations of oppressive behaviour. Three per cent of complainants declared themselves to be gay, with this category more likely to make allegations of discriminatory behaviour than heterosexual complainants. This information was updated in a further Equality Monitoring Report published in 2013, covering the period 2008–13, which indicates that the Police Ombudsman’s Office ‘is being used by all groups across the community’. Twothirds of complainants were male; the proportion of complainants aged under 25 has fallen over the past two years; the religious belief of complainants is reflective of the most recent census; and over 30 per cent of complainants reported that they had a disability. It is difficult to make comparisons in terms of complaint outcome year-on-year, particularly as a new system for gathering and presenting statistical information was introduced in 2008. What is obvious is that complaints up to that point had been increasing, with so-called ‘historic’ complaints (about incidents occurring during the ‘Troubles’) accounting for about 20 per cent of the total workload by 2012 (see below). Of the cases closed during 2011–12, 22 per cent were dismissed due to complainant non-cooperation. A further 41 per cent were not substantiated due to a finding by OPONI of insufficient evidence to support the allegation (this went down to 39% in 2012–13), and 5 per cent recommended action being taken against the police officers involved (a figure replicated in 2012–13)—action such as ‘criminal charges’, ‘disciplinary charges’, ‘Superintendent’s Written Warning’ or ‘Advice and Guidance’.

100

Mary O’Rawe

The number of recommendations made to the PPS for no prosecution, in respect of ongoing and closed investigations, fell by 38 per cent between 2009 and 2013, with the largest drop occurring in 2012–13. Disciplinary hearings arising from Police Ombudsman investigations were concluded on six officers. Of these, two resigned prior to hearing, two were found not guilty, and two officers who initially received either a caution or a fine had these overturned when the Chief Constable reviewed the finding. According to the OPONI website, 40 recommendations were made in 2010–11 in terms of areas for improvements in policing. Over the last four years the majority of recommendations made to the Chief Constable, in respect of ongoing and closed investigations, have been that the officer should receive advice and guidance, although the proportion of such cases has decreased over this time period. The rise in the number of recommendations of Superintendent’s Written Warnings in 2011–12 and 2012–13 was partly the result of two investigations carried out during that period. At the time of writing, the majority of the recommendations to the Chief Constable have been accepted or are still awaiting a decision. Levels of public satisfaction with the Office are still relatively high, but have recently indicated a statistically significant downward turn. In OPONI’s statistical report for 2012–13, 52 per cent of complainants were reported to be satisfied or very satisfied with the service they received from the Office. This represents a considerable fall since 2009–10, when 65 per cent of complainants were satisfied with the service provided. Complainants were least likely to be satisfied with the overall time taken to resolve the complaint and the outcome of the complaint. Generally, satisfaction rates have fallen since 2009–10 for all aspects of service, though none of these statistics should be viewed simplistically. Meanwhile, 73 per cent of police who returned satisfaction questionnaires in 2011–12 and 2012–13 indicated that they were satisfied or very satisfied with how the complaint against them was handled by OPONI.

Legacy Cases Normally, a complaint must be made within 12 months of the behaviour complained of or it will not be investigated. The two exceptions to this are if there has been no previous investigation and if new evidence has come to light which was not reasonably available before, but in both situations an investigation will occur only if the Police Ombudsman considers the complaint to be ‘grave and exceptional’. Equally, OPONI can investigate in certain circumstances in the absence of any complaint by calling itself in, in the public interest. On 12 December 2001 the Ombudsman presented a report on just such an investigation into matters preceding and following the Omagh bomb of 15 August 1998, in which 31 people, including two unborn children, were killed. This investigation raised serious

Complaints Against the Police

101

concerns as to how RUC Special Branch had handled information given to them prior to the bombing and how the investigation following the bombing had been hampered by the failure of Special Branch to hand over relevant information to the criminal investigation team. The report concluded, among other things that the leadership of Ronnie Flanagan, then Chief Constable, was ‘seriously flawed’. The report created enormous controversy, with the Chief Constable denouncing its findings as unfair and the investigation itself as less than rigorous. He claimed not to have been interviewed in relation to the Omagh investigation, or given a chance to respond prior to the report being published. Rather than accepting that mistakes were made and that systems were less than perfect, the Chief Constable’s response attempted to deflect attention from the shortcomings of his force and to point the finger at the Ombudsman for her failure to understand how the police have to operate in the face of a terrorist threat. The official government response to the report was far from satisfactory. While the bulk of the recommendations were eventually implemented to some extent, there was initial resistance to doing so. A judicial review initiated by the Police Association was eventually dropped in January 2003. This received little media attention so long after the original event but resulted in a vindication of the Ombudsman’s findings with regard to the Omagh bomb. It must be acknowledged that a degree of mistrust by many police officers as to the fairness and efficacy of OPONI has been a feature of relations between OPONI and the police from the earliest days of the office, though work has been done to counteract negative perceptions. It is in relation to legacy issues and those cases involving the use and misuse of intelligence that most of the controversy surrounding the operation of OPONI has centred. In 2003, a complaint by the father of Raymond McCord into his son’s killing resulted in a lengthy OPONI investigation culminating in the Operation Ballast report in 2007. This exposed major police wrongdoing in the running of a number of agents in the Mount Vernon area of North Belfast, and detailed a series of failings up to and including collusion by PSNI officers in acts of murder. A key significance of this report was that it demonstrated a whole series of concerns in relation to the handling of covert human intelligence sources (CHISs) which spanned the period of the Patten reforms. Time and again, OPONI reports have reflected concerns that Special Branch intelligence has not been provided to CID investigators, that records have been falsified or withheld from OPONI investigators and that obstruction from a number of serving, and in particular retired, officers have hampered OPONI investigations. OPONI currently has no remit to investigate complaints against retired officers, and no power to interview them unless in connection with allegations of misconduct amounting to criminality. To date, no Special Branch officer has been prosecuted as a result of an OPONI investigation. The transfer of responsibility for national security and relevant intelligence gathering to MI5 in 2007 effectively put this domain beyond the investigative reach of OPONI.

102

Mary O’Rawe

The Historical Investigations Directorate It is also significant that, during the tenure of the second holder of the office, Al Hutchinson, himself a former police officer in Canada, who took up office in November 2007, OPONI was particularly beset by concerns as to its own handling and investigation of legacy cases. OPONI has had a dedicated resource to look at historical cases since 2005–06. In 2010, OPONI established its Historical Investigations Directorate to deal with cases prior to the signing of the Peace Agreement in 1998. The resignation of OPONI’s Chief Executive in April 2011, followed in quick succession by three highly critical external reports into aspects of OPONI practice, highlighted failures of management and trust and a lowering of operational independence within the office, particularly regarding access to and use made of sensitive intelligence information. OPONI investigations into aspects of policing in cases such as the deaths at the Heights Bar in Loughinisland, the fatalities resulting from bombings in Claudy and at McGurk’s Bar in Belfast, and the killings in separate incidents of the ‘Good Samaritan’ Eugene Dalton, the self-confessed IRA informer Denis Donaldson and the RUC Officer, John Larmour, each evidenced very questionable practice in terms of the failure to exploit key evidential opportunities, the unexplained rewriting of draft OPONI reports to portray the police in a more favourable light and the unwillingness of OPONI to provide certain information to complainants as to the circumstances of their loved ones’ deaths. In the wake of these criticisms, Al Hutchinson announced a temporary moratorium on OPONI initiating or concluding any further legacy cases until organisational changes were put in place, and he decided to leave his post earlier than planned, in January 2012. Another senior member of staff member also resigned. From September 2011 until January 2013, legacy investigations remained suspended at OPONI, except in circumstances where the (interim) Chief Executive judged ‘that there is a significant operational risk of evidence being lost or compromised and where failure to commence an investigation could undermine the investigation, particularly where there is a parallel police enquiry’ (Police Ombudsman Annual Report, June 2012). In its 2011–12 Annual Report, issued just prior to the new Ombudsman, Dr Michael Maguire, taking up his post, the senior management team acknowledged that the confidence of some stakeholder groups had been damaged, a fact clearly demonstrated in falling levels of complainant satisfaction. However, the Office declared itself determined to move forward in a positive fashion, having accepted all major criticisms levelled at it and taken steps to correct inadequacies in its governance arrangements and operation processes. The History Directorate has subsequently recommenced its legacy work with a staff of almost 40 people, drawn from a variety of professional backgrounds. It looks at cases where members of the RUC may have been responsible for deaths or serious criminality in the past, and in particular between 1968 and 1998. The Directorate also receives complaints of a grave or exceptional nature from members of the public about police conduct during this period, including

Complaints Against the Police

103

allegations of police involvement in murder, attempted murder, and conspiracy and incitement to murder. According to a report by the Criminal Justice Inspectorate on the cost and impact of dealing with the past in Northern Ireland (2013), legacy work now accounts for between 3 and 5 per cent of the overall number of complaints handled by OPONI. These complaints have been on the increase in recent years, with the average number received between 2001–08 being 10 per year and the number received in 2012 being 55. There is also a pattern emerging of the re-opening and overturning of previous findings and investigations by the former Police Ombudsman (eg into the murders of six men at the Heights Bar in Loughinisland and the murder of Denis Donaldson). With the current caseload it could take a significant number of years to complete the work required. A prioritisation policy for legacy cases was formally adopted on 31 January 2013. The progress of historical investigations may be significantly slowed where there is a need to conduct parallel investigations alongside the PSNI. Moreover, OPONI has sought some legislative changes which could, if agreed, bring a significant number of additional cases within its scope, increasing the overall caseload by some 30 per cent. The investigation of ‘cold cases’ is particularly complex and tends to require additional resources. The Criminal Justice Inspectorate for Northern Ireland recently put the budget for OPONI legacy work at 28 per cent of OPONI’s total expenditure, with a current core funding of £2.08 million per year. Falling as it does within OPONI, the Historical Investigations Directorate has no legal power to investigate matters related to the conduct of the military, the security services or CHISs. To date, no successful prosecution has occurred relating to any legacy investigation conducted by OPONI.

How to Make a Complaint Whether a complaint relates to something that happened recently or a long time ago, ideally a note about what occurred should be made as soon as a decision is taken to submit a complaint. This note can then be drawn upon to write a letter or statement for the Ombudsman. It is important for a complainant (ie the person making the complaint) to be as accurate as possible about their recollection; they should not exaggerate any detail or be categoric about any information if unsure about it. Any reliable witness will be a big help in proving what happened so, where possible, contact details should be sought from any person who may have witnessed the incident or experienced similar behaviour themselves. These details should be passed to OPONI, along with any other information thought to be relevant. The complainant should always keep a copy of any such documentation and any letter or email sent relating to the complaint. A copy should also be kept of any correspondence received from OPONI, together with a note of the date, time and duration of any phone calls made or received in respect of the complaint.

104

Mary O’Rawe

What Happens to a Complaint? If the matter is classified as a complaint by OPONI, steps must be taken by the Chief Constable and the Ombudsman’s office to preserve any relevant evidence. A complaints investigator may arrange to meet with the complainant to take further details. This meeting should take place somewhere where the complainant feels comfortable. It might be at the office of the Police Ombudsman, an advice centre, a police station, a local hotel or some other suitable place. After this meeting a complainant should be told how the Police Ombudsman proposes to deal with the complaint and should be given the name of the OPONI staff member responsible for dealing with the complaint. A complainant should request a copy of any statement he or she makes to the Ombudsman’s office and should check that the final version of any statement properly reflects what has been said. If there is anything the complainant is unhappy with, a request should be made for the statement to be changed. Witnesses should similarly request a copy of their statements and ask for inaccuracies to be corrected. At every stage of the proceedings, OPONI should keep the complainant informed of the progress being made with the complaint and the complainant will also be provided with a written report on the decision as to whether a complaint is substantiated or not and what action (if any) is to be taken. Unfortunately, issues of delay and the provision of insufficient information continue to be matters which cause concern among many complainants.

Disclosure and the Right to be Kept Informed In R v Chief Constable of West Midlands, ex parte Wiley (1995) the House of Lords held that public interest immunity does not generally attach to statements obtained during a police complaint investigation. This means that, generally speaking, there is no automatic bar on the disclosure of such statements, even if the disclosure would reveal the identity of an informer, for example. The law recognises, however, that in exceptional cases, ‘where the Secretary of State perceives a real risk of intimidation … to persuade witnesses to change their evidence’ (R v Home Secretary, ex parte Hickey (No 2), 1995), there might be a reason for non-disclosure of witness statements to the complainant. At the same time, complainants do not generally have the right of access to statements or documents collected during the investigation into their complaint, unless they can show that access to this material is ‘necessary for disposing fairly’ of their civil claim for damages (Lanigan, McCotter and Tumelty v Chief Constable of the RUC, 1991). In the English case of R (Green) v Police Complaints Authority (2002) the House of Lords confirmed that a complainant’s legitimate interests

Complaints Against the Police

105

under the European Convention on Human Rights (ECHR) are adequately safeguarded by his or her right to a thorough and independent investigation, the right to contribute evidence to that investigation, the right to be kept informed of the progress of the investigation and the right to be given reasoned conclusions when it is completed. This case laid down a general rule that complainants are not entitled to the disclosure of witness statements in the course of a police investigation until, at the earliest, its conclusion. The judges did, however, refer favourably to the practice of providing complainants with limited documentary evidence and an oral summary of witness evidence and the police officer’s account of the incident on a confidential basis, so as not to compromise any future criminal or disciplinary proceedings. A complainant is not, therefore, entitled, as of right, to see documents that OPONI obtains in the course of an investigation, even if the complainant feels this could help them provide further assistance to the investigation, or understand better the conclusions reached. This point was further confirmed in 2005, in an application for judicial review taken by the CAJ to challenge a refusal by the Chief Constable and OPONI to grant the CAJ access to particular documentation. The documents related to the investigation of a complaint lodged by the CAJ concerning the lack of a proper police investigation into death threats received by Rosemary Nelson, a solicitor and CAJ executive member, who several months later, in 1999, was murdered. The court held that OPONI was under no duty to disclose confidential documents obtained during the course of an investigation as: ‘The effective investigation of complaints must depend to some extent at least on the knowledge of participants in inquiries such as this that their contributions can be made confidentially.’ The court did add that different considerations would apply if it could be demonstrated that by keeping documentation confidential a less effective inquiry was likely to ensue, although without sight (or in some cases awareness) of the documents in question it will be difficult for any complainant to show a loss of effectiveness (see Re an Application by CAJ and Martin O’Brien for Judicial Review, 2005). After a number of cases relating to issues of disclosure in inquests in Northern Ireland, in Re McCaughey (2011) the UK Supreme Court laid down the principle, applying the judgment of the European Court of Human Rights in S¸ilih v Slovenia (2009), that even where a death occurred prior to the coming into force of the Human Rights Act any public authority conducting an investigation into the circumstances of the death may be legally obliged to conduct an inquiry which is fully compliant with the demands of Article 2 of the ECHR—including that it be independent, effective and prompt and that family members are kept fully informed to the extent that their interests require.

Cooperation by the Complainant In 2013–14, the investigations of more than one-quarter of allegations were closed because of the complainant’s failure or unwillingness to cooperate with OPONI.

106

Mary O’Rawe

Some complainants are reluctant to cooperate because they fear that statements made by them might later be used against them by the police in related criminal or civil proceedings. As mentioned above, the courts have held that complainants do not have the absolute right to have their statements kept secret. At present there is no legislative provision which protects statements made during formal investigations in the same way as those made during informal resolution or mediation (see below).

Informal Resolution A complaint can be dealt with either by informal resolution or by formal investigation. The informal resolution process is governed by section 53 of the Police (NI) Act 1998 and relevant regulations. The legislation provides for informal resolution of ‘suitable’ complaints, that is, where the matter is ‘not serious’ and the complainant has consented. These will be cases where the behaviour complained of, even if proved, would not justify criminal proceedings. Such cases arise where ‘quality of service’ is at issue, for example, the behaviour is not unlawful or even manifestly unreasonable but might require an explanation or apology. In practice, complaints relating to children and vulnerable adults will not be dealt with in this way. The information leaflet from OPONI states that a decision on whether informal resolution is appropriate will be given within three days of the complaint being lodged. At this point, the matter is handed over to the Chief Constable (or to the Policing Board in the case of senior officers) for the appointment of a senior police officer to carry out informal resolution procedures. The Police Ombudsman will simply monitor that this is done and receive a copy of a report of the outcome in due course. The police officer appointed by the Chief Constable or by the Policing Board to conduct the informal resolution procedure will seek the views of both parties, give the officer complained about an opportunity to comment orally or in writing on the complaint, and try to resolve the matter to each side’s satisfaction. An apology will not be forthcoming unless the officer concerned admits the behaviour which forms the substance of the complaint. A record will be made of the outcome of the procedure, and a complainant is entitled to a copy of this if he or she requests it from OPONI within three months. If informal resolution is successful, a complainant will be asked to sign a statement of satisfaction with the outcome, but the complainant is not under any obligation to do this. If informal resolution is unsuccessful because agreement cannot be reached or it becomes apparent that the complaint is not suitable for informal resolution, the matter will be referred back to the Ombudsman. A complainant can unilaterally call a halt to informal resolution at any stage if he or she is dissatisfied with the progress being made. No statement made by any person for the purpose of informal resolution can subsequently be used in any court or disciplinary proceedings unless it amounts

Complaints Against the Police

107

to an admission of some conduct other than that which is being dealt with in the informal resolution procedure. As already mentioned, this contrasts with the rule which applies during investigations of complaints. One of the obvious problems with the current legislative approach to informal resolution is that behaviour which might not appear serious in isolation could form part of a much more sinister pattern of harassment or collusion. Where this proves to be the case, one would hope that the matter would immediately be referred back to the Ombudsman. A complainant might also be concerned if a matter is handed back to the police to investigate instead of being dealt with by an independent arbiter. On the other hand, it can be argued that quality of service issues are much more appropriately addressed ‘in-house’, with management learning lessons and taking responsibility for how police officers treat people on the streets. In any event, informal resolution cannot take place without the consent of the complainant. If any misgivings exist, a complainant can simply refuse to have the matter dealt with in this way. While there is much to be said for using informal resolution to deal quickly and efficiently with the kind of complaint amenable to such a process, a key concern arising from the current process is the extent to which it is police led. Whereas this is important in terms of encouraging corporate responsibility for the actions of police officers, a police-led process may create problems in terms of a complainant feeling that his or her complaint has been dismissed as not warranting the attention of OPONI. There may also be concerns where a complainant is uncomfortable dealing with police officers or where a seemingly superficial incident actually masks a more invidious pattern or practice which manages to continue under the radar of formal investigation. A complainant survey carried out by OPONI in 2005 found that while two out of every three complainants found the informal resolution officer to be helpful and to have taken their complaint seriously, 73 per cent felt the process should not be handled by police officers, and only two out of every five felt their complaint had been satisfactorily resolved. In 2011–12, 501 complaints were considered suitable for informal resolution with 300 complainants (60%) agreeing to the informal resolution process. OPONI statistics indicate that 74 per cent of matters dealt with through informal resolution during 2011–12 were successfully resolved. In 2012–13, the proportion of complaints considered suitable for referral for informal resolution continued to fall (to 14%). However, around three-quarters of those referred continue to have successful outcomes.

Mediation Mediation is a process which does not set out to find fault, assign blame or punish anyone. It focuses instead on problem-solving and reaching agreement. It was provided for to some extent under the Police (NI) Act 2000. However, this only

108

Mary O’Rawe

permitted mediation to be utilised after an investigation had been conducted, thus largely defeating the object of mediation in the first place. The 2003 Act did little to change the situation and, in 2005, Nuala O’Loan recommended legislative change to facilitate pre-investigation mediation. OPONI then undertook an 18-month consultation process on this point. In 2008–09 OPONI piloted the use of mediation for complaints against police. Evaluation and key findings are summarised in OPONI’s Pilot Mediation Project Report, September 2008–March 2009. The take-up rate was very low, and a number of reasons were put forward for police officers, in particular, declining mediation. These included feeling more comfortable with an adversarial system, because it would better vindicate and protect them. The study also highlighted police concerns that accepting mediation would be seen at some level as an admission of guilt. In spite of the low take-up rates in the pilot, the report concluded that mediation ‘is far more cost and time effective than any other process currently used by the Office’. It noted that there are a number of challenges but that these are not insurmountable, and it called for relevant legislative change to allow for pre-investigation mediation to be implemented. However, according to the OPONI website, while legislation has recently been enacted to allow OPONI to mediate complaints against police officers, mediation has not yet been ‘rolled out’ and is not presently used to resolve complaints. Anyone with questions about mediation can contact the relevant member of staff at OPONI.

Investigation An investigation will occur where the complaint is not deemed suitable for informal resolution. If a complaint is deemed to be serious (ie it involves death or serious injury) the Ombudsman must conduct an independent formal investigation. In other cases he or she can refer the matter to the Chief Constable for investigation by the police. The Ombudsman can continue to supervise the Chief Constable’s investigation if he or she deems it in the public interest to do so. Where investigation is carried out by an investigator from OPONI, he or she has the same powers and duties as any police officer of equivalent rank as regards how the investigation is carried out (see the Police and Criminal Evidence (Application to Police Ombudsman) Order (NI) 2000, Sch 2). This includes the right to search, arrest and detain suspects and to use reasonable force where necessary. The Police Ombudsman and his or her staff have a right of access to all PSNI information and documents deemed necessary for their investigation. During 2009–10 the average time to complete an investigation was 109 days, with many cases taking much longer to be resolved.

Complaints Against the Police

109

Investigation in the Absence of a Complaint Under the Police (NI) Act 1998, section 55(1), if it appears to the Secretary of State, the Minister of Justice, the Policing Board or the Chief Constable that a police officer may have committed a criminal offence or broken the PSNI Code of Ethics, they may refer the matter to OPONI to investigate if they feel this is desirable in the public interest. Under section 55(2) the Chief Constable must refer to the Ombudsman any matter which has resulted in death, even in the absence of complaint. Section 6 of the Justice (NI) Act 2004 also requires the Director of Public Prosecutions (DPP) to refer certain non-complaint matters. The Police Ombudsman automatically investigates: — all discharges of police firearms (including those used in riot situations); — all fatal road traffic collisions involving police officers; — any death which may have occurred as a result of the actions of a police officer; and — any other serious allegation. In 2011–12, the Chief Constable made 33 referrals, of which three related to the PSNI’s Historical Enquiries Team (HET), and the DPP made four section 55 referrals. In 2012–13, there were 42 Chief Constable referrals, including 12 which related to investigations being reviewed by the HET, and the DPP made just one referral. Concern has been expressed in the past in relation to at least one referral from the Chief Constable which resulted in very little action being taken by OPONI, despite the seriousness of the issues involved. Even in the absence of a complaint or a referral, the Police Ombudsman can decide, under section 55(6)(b) of the Police (NI) Act 1998, to investigate a matter formally if there is reason to think that a police officer may have committed a criminal offence or breached the Code of Ethics (these are referred to as ‘call-ins’). This has happened on a number of occasions where the matter raises serious public interest concerns and relates to possible criminal or disciplinary matters. The report on the Omagh bombing is one example (see pages 100–101 above). Twelve investigations were initiated under this heading in 2011–12, with that number increasing in 2012–13 to 16 (the highest ever annual number).

Who Investigates ? OPONI investigators deal with formal investigations into complaints made by members of the public or referred by the Secretary of State, the Minister of Justice, the Policing Board or the Chief Constable. They also investigate when

110

Mary O’Rawe

the Police Ombudsman decides to use the power to involve him- or herself in an investigation even though no complaint has been made. As mentioned above, the Ombudsman also has power to ask the Chief Constable to appoint an investigator and, if deemed necessary, OPONI may supervise that investigation. In theory, OPONI investigators are specially trained lay investigators. In practice, as with many such organisations throughout the world, investigators tend to be seconded or former police officers. The Conduct Regulations lay down that, where the investigator is not from OPONI, the investigating officer shall not be a member of the same sub-division or branch as the police officer subject to investigation. In the case of senior officers, the Chief Constable is also excluded from this role. The investigating officer must be of at least inspector rank (or Assistant Chief Constable in the case of a superintendent under investigation) and at least the same rank as the officer under investigation. The investigating officer should not have any other interest in the matter, and may come from another police force. OPONI has to approve the investigating officer appointed. The investigating officer, whether from OPONI or appointed by the Chief Constable, must as soon as practicable (without prejudicing the investigation) give the police officer written notice of the investigation and provide a written copy of the complaint or report. That officer will be informed of his or her right to contact the staff association and to have another police officer present at any interview or hearing. The officer will be cautioned in accordance with Schedule 2 to the Conduct Regulations. This will allow an adverse inference to be drawn from silence in certain instances (see Chapter 4). At the end of the investigation, a written report will be furnished to OPONI. The case may then be referred to a hearing. Where a case is not referred to a hearing, no mention of it will be made on the officer’s personal record. This is an important safeguard in terms of unfounded allegations against an officer, but does have the potential to mask repeated complaints against an officer which, although falling short of proof on a specific incident, may indicate potential management issues around how that particular officer deals with members of the public generally or in specific situations.

Suspension from Duty Part II of the RUC (Conduct) (Senior Officer) Regulations 2000, as amended, deals with officers of the rank of Assistant Chief Constable and above. Part II of the RUC (Conduct) Regulations 2000, as amended, deals with suspension and investigation as regards all other officers. The Chief Constable (or Policing Board in the case of the most senior officers) has the power to suspend an officer where there is a report, allegation or complaint that he or she did not meet the required

Complaints Against the Police

111

standard of conduct. There are further conditions, in respect of a senior officer, that the investigation would be prejudiced and that it is in the public interest that he or she be suspended. The approval of OPONI is also needed for the suspension of a senior officer. At any time during an investigation, if it appears that the officer concerned did not meet the appropriate standard of behaviour, OPONI should furnish the appropriate disciplinary authority (either the Chief Constable or the Policing Board) with relevant information to allow it to consider whether the officer should be suspended. In respect of senior police officers of the rank of Assistant Chief Constable and above, the disciplinary authority is the Policing Board. For all other officers, the Chief Constable is the disciplinary authority.

Disciplinary Investigation in the Case of Possible Criminal Behaviour Under the Conduct Regulations, whether or not an officer is suspended, no investigation into disciplinary matters can take place where there are outstanding criminal proceedings against the officer concerned, unless the Chief Constable considers that, in the exceptional circumstances of the case, it would be appropriate for the investigation to continue. This means that, where there is a possibility that criminal proceedings might be recommended by the Ombudsman or commenced by the DPP, there will be no internal move to sanction the officer concerned until such criminal proceedings have come to an end. This can lead to the process being unsatisfactorily drawn out. Until relatively recently, if criminal proceedings were not initiated, under a gross misinterpretation of the ‘double jeopardy’ rule—whereby a person cannot be tried twice for the same offence—many officers escaped any internal sanction at all. The legality of this practice was successfully challenged in England in Ex parte Madden and Rhone (1982) and it is now clear that each case should be considered on its own merits irrespective of the DPP’s decision to prosecute or not in any given case.

Outcome of Complaints If there is no evidence to support the complainant’s allegation, or for some other reason it is not substantiated (ie not proven), the complaint will not be investigated any further. OPONI will give the complainant reasons for this decision. This has tended to be by far the most common outcome in any system set up to investigate complaints against the police, and OPONI is no exception in this regard.

112

Mary O’Rawe

Recommendations to the DPP If the evidence shows that a police officer may have committed a crime, OPONI will recommend to the DPP that he or she prosecute the officer. If the DPP decides to prosecute, the criminal proceedings will be conducted as they would be against any individual—in the magistrates’ court if the offence is a fairly minor one (a summary offence), with the right of appeal to a county court and, if necessary, to the Court of Appeal. In the case of a serious (ie indictable) offence, the case will begin in a magistrates’ court prior to being transferred to the Crown Court, with a right of appeal to the Court of Appeal (see Chapter 2). Where the offence charged is one covered by anti-terrorist legislation, the officer may be tried by a judge sitting without a jury in a so-called ‘Diplock’ court (see Chapter 4). A complainant may be called as a witness for the prosecution in any criminal trial. Aside from this, he or she will have no involvement in the criminal process. Where the DPP decides not to initiate criminal proceedings, there is little that a complainant can do. Because the DPP is not obliged to give reasons for a decision not to prosecute, a legal challenge, even by way of judicial review, is generally unlikely to succeed. A private prosecution is possible, but prohibitively expensive in most cases. Under the Police (NI) Act 2000, section 58A, if the investigation concludes that no criminal offence has occurred and the matter is not serious, mediation may be undertaken by the Ombudsman’s office with the consent of both police officer and complainant. If mediation is not proceeded with in such circumstances, disciplinary action may be considered for recommendation.

Disciplinary Charges If the evidence shows that a police officer may have broken the police’s Code of Ethics, OPONI will decide what disciplinary charges could be brought against the police officer and will recommend disciplinary action. The conduct of the police officer in respect of attempts at mediation will be taken into account by the OPONI when deciding whether to recommend disciplinary action. If the Chief Constable does not accept the OPONI’s recommendations regarding discipline, the Ombudsman can direct that he or she must do so. The problem with this, of course, is that, for all officers under the rank of Assistant Chief Constable, it will be the police who carry out the disciplinary proceedings and conduct any disciplinary hearing. It cannot be ruled out that the Chief Constable’s reluctance to institute such proceedings in the first place may have some influence on the final outcome. If disciplinary charges are not brought against the police officer, a complainant can write to OPONI requesting further explanation.

Complaints Against the Police

113

The PSNI Code of Ethics sets out under a number of headings in terms of what is expected of a police officer in the performance of his or her duty. It can be accessed on the PSNI website. If the appropriate standard is not met under any of these headings, an officer may be subject to disciplinary action. The Code, most recently updated in 2008, has detailed provisions organised under the following headings: — — — — — — — — — —

professional duty; police investigations; privacy and confidentiality; use of force; detained persons; equality; integrity; property; fitness for duty; and duty of supervisors.

Disciplinary Hearings If an officer accepts that his or her behaviour did not meet the appropriate standard, a sanction may be imposed without a hearing. Otherwise a disciplinary hearing may take place in accordance with procedures under the Conduct Regulations, with findings made on the ‘balance of probabilities’. The system for disciplining PSNI officers is currently under review, with new regulations due to be brought into effect within the next year or so, but the following account reflects the position as of 1 September 2014. For officers below the rank of Assistant Chief Constable, the disciplinary panel consists of three police officers with an Assistant Chief Constable presiding. An officer must be given 28 days’ written notice of a disciplinary hearing, and supplied with copies of any relevant statements, documents or other material obtained by the investigating officer. If there is a possibility that the officer could be dismissed, required to resign or demoted, the police officer may be legally represented. Otherwise he or she will be represented by another police officer. A verbatim record of the proceedings will be made. A complainant may attend any disciplinary hearing with a relative or friend. If called as a witness, he or she cannot attend the proceedings prior to giving evidence and may have to withdraw if sensitive material is to be presented to the panel which it is deemed the complainant should not hear. The complainant will then be subject to cross-examination. Other than this the hearing will be in private, although an authorised representative of the Ombudsman’s office may be present. Adverse inferences may be drawn

114

Mary O’Rawe

from the officer’s silence in certain circumstances. The following sanctions may be imposed by the disciplinary panel: — dismissal from the force; — a requirement to resign from the force as an alternative to dismissal, taking effect one month from the date of the decision; — a reduction in rank; — a reduction in pay for such a period, not exceeding 12 months, as shall be specified in the decision; — a fine of a sum representing not more than 13 days’ pay recoverable over a minimum of 13 weeks; — a reprimand; or — a caution. Under Part IV of the Regulations, an officer may request that the Chief Constable review the panel’s decision. In respect of senior officers, the disciplinary panel will consist of one person appointed by the Policing Board from a list nominated by the Secretary of State and one or more assessors, one of whom will be a former chief officer of police, appointed to assist this person. The case against the senior officer will be conducted by an independent solicitor and the senior officer may conduct the case in person or through a representative. Most of the procedures in respect of the attendance of the complainant are similar to those outlined above. In ‘special’ cases of a serious nature, where an imprisonable offence may have been committed, the procedures may be modified in accordance with the Regulations. Whether or not the officer is a senior officer, the panel must find that the officer did not meet the appropriate standard if this is admitted by the officer or proved on the balance of probabilities. In the case of a non-senior officer, the panel will submit a copy of its report to the Chief Constable with (in the case of a complaint) a copy sent to the Ombudsman. The Chief Constable can record a finding of failure to meet the appropriate standard and either impose a sanction or take no further action. In the case of a senior officer, the disciplinary panel will submit a copy of its report to the Policing Board, again with a copy to the Police Ombudsman if the case has arisen out of a complaint. The sanctions for senior officers are dismissal, requirement to resign, or reprimand.

Disciplinary Appeals An officer can appeal against a disciplinary sanction within 21 days. In the case of a senior officer (Assistant Chief Constable and above), the Secretary of State appoints a panel of three, comprising one member of the Policing Board, one senior police officer and one legally-qualified presiding officer. For all other

Complaints Against the Police

115

officers there will be a four-member panel, appointed by the Policing Board. This will include one member of the Policing Board, one legally qualified person to preside over proceedings, one senior police officer and one retired police officer. The Appeals Regulations govern procedure and provide that the complainant can attend and may be allowed a friend or relative in view of age or other vulnerability. If giving evidence, attendance will not be allowed before the complainant gives evidence and the complainant may have to withdraw if sensitive material is to be put before the appeal panel. The appeal may be allowed, dismissed or a less severe punishment imposed. As far as is known, no complaint has ever been substantiated against a senior member of the RUC or PSNI.

Compensation In a departure from the previous system, under which a complainant seeking compensation had to initiate separate legal proceedings in a county court or the High Court, even where his or her complaint had been upheld, the Ombudsman now has the power to recommend compensation if a complaint has been substantiated. This does not affect a person’s right to issue civil proceedings, but in the past it has often proved difficult to convince a judge that police maltreatment has occurred even though cases for civil wrongs such as assault, unlawful arrest and over-holding have to be proved only on the balance of probabilities. Although several people have succeeded in obtaining compensation for such wrongs, generally such cases have been settled out of court with no admission of liability on the part of the police.

Research The Ombudsman’s office is required by law to supply statistical information regarding all complaints it has handled. A small policy and research office reports monthly to the police in this regard. It is intended that this information will allow police managers to deal more effectively with conduct and practice issues which arise. OPONI also carries out specific pieces of research and prepares policy papers on the work of the police and OPONI itself, as well as providing an information service for the public and a press and media service. The research department has also organised seminars and conferences, with input from visiting speakers. Section 13 of the Police (NI) Act 2003 inserted a new section 60A into the Police (NI) Act 1998, which allows the Police Ombudsman to investigate a current PSNI policy or practice if he or she believes this would be in the public interest.

116

Mary O’Rawe

A number of policies and Force Orders have already been changed as a result of this work. Publications are available on the OPONI website. The performance measure that the Office has historically adopted to demonstrate its effectiveness in improving PSNI policy and practice has been confined to confirmation by PSNI that the recommendations made have been accepted and implemented. OPONI recognises this fails to provide evidence of improvements having actually occurred on the ground, and the Office is working with the Policing Board and the PSNI to develop a strategy to evaluate the impact of recommendations made by the Office in respect of police policy and practice.

Reports The Police Ombudsman produces an annual report referring to the allegations he or she has dealt with during the previous year. The Ombudsman can also write a report on anything he or she thinks the Minister of Justice should know about, in the public interest. In addition, the Minister of Justice and Secretary of State can ask OPONI to carry out any necessary research and report on any matter. Any report that OPONI makes under this power must also be sent to the Northern Ireland Assembly or UK Parliament and published. OPONI must also send a copy of any report it makes to the Chief Constable and to the Policing Board and it must supply the Policing Board with any statistics which it thinks they should receive. The Omagh bomb report (see pages 100–101) was presented to the Secretary of State under Regulation 20 of the RUC (Complaints etc) Regulations 2001. It is up to the Minister of Justice or Secretary of State (depending on whether it relates to a devolved issue or not) to decide whether or not to publish any such report. The OPONI statement in relation to the Omagh investigation was published under section 62 of the Police (NI) Act 1998. Other investigation statements and reports are available on the OPONI website. Under the Police (NI) Act 1998, section 61(4), the Ombudsman must keep the complaint-handling system under review and make a report on it to the Department of Justice at least once every five years. The last such report was submitted in 2012.

Conclusion In many ways, OPONI represents a welcome departure from past police complaints processes in Northern Ireland. It has a number of unique aspects and had, until recently, achieved a high level of credibility amongst the public in terms of its independence. There are signs that that credibility is being re-established. The

Complaints Against the Police

117

Office has been used in creative ways, for example, after the murder of Robert McCartney in 2005 it served as a statement-taking body for a number of witnesses who did not feel comfortable giving statements to the police. The office is not, however, without its detractors or indeed its faults. Recent events have starkly demonstrated how difficult it can be to both forge and maintain independence and trust in an area such as this. For instance, only 52 per cent of respondents in 2011–12 reported being very satisfied or satisfied with the quality of service provided. This was a fall from 59 per cent the previous year. The legacy of conflict has found OPONI resources and processes wanting in a number of key respects and, despite some highly valuable information coming to light as a result of a certain OPONI investigations, tensions remain as to how suitable a vehicle this office is or could be, particularly when it comes to dealing independently, sensitively, effectively, comprehensively and transparently with legacy complaints.

Useful Contacts Northern Ireland Policing Board Waterside Tower 31 Clarendon Road Clarendon Dock Belfast BT1 3BG tel: 02890408500 email: [email protected] www.nipolicingboard.org.uk Police Ombudsman for Northern Ireland New Cathedral Buildings Writers’ Square 11 Church Street Belfast BT1 1PG tel: 028 9082 8600 (out of hours: 0845 601 2931) fax: 028 9082 8659 email: [email protected] www.policeombudsman.org Public Prosecution Service for Northern Ireland Headquarters Belfast Chambers 93 Chichester Street Belfast BT1 3JR tel: 028 9054 2444 www.ppsni.gov.uk

118

Mary O’Rawe

Police Service of Northern Ireland Headquarters Brooklyn 65 Knock Road Belfast BT5 6LE tel: 028 9065 0222 www.psni.police.uk

6 Prisoners’ Rights JACQUELINE MONAHAN AND ANN JEMPHREY

Northern Ireland currently has three prison establishments. These are Maghaberry, Magilligan, and Hydebank Young Offenders Centre (YOC), the last of which also houses the women’s prison (Hydebank Wood). As of 19 February 2014 the prison population was 1,852 (of which 1,782 were men and 70 women (plus one baby)). Of these, there were 155 males held at the YOC and there were no immigration detainees; 72 ‘separated’ paramilitary prisoners were held at Maghaberry and three female separated prisoners were held at the healthcare centre at Hydebank Wood. Of the 1,852 prisoners, 354 were on remand. A number of significant changes have been made to prison management since the devolution of policing and justice in April 2010 and the subsequent creation of the Department of Justice (DoJ). The Northern Ireland Prison Service (NIPS) is an agency within the DoJ and is headed by a Director General who has responsibility for operational matters. The Director reports to the Minister for Justice, who in turn makes an annual report to the Northern Ireland Assembly on the working of the Prison Service. The NIPS is currently being transformed as the result of a reform process which came about following a number of critical reports and reviews. Some of what is outlined below may, therefore, be subject to imminent change. Moreover, certain rights, such as those relating to visits, vary significantly for remand prisoners, imprisoned mothers and young adults. Specific and up-to-date guidance should be sought from the organisations listed at the end of this chapter. It is worth noting that despite devolution and the general authority of the Minster for Justice over prisons, Schedule 4 to the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 specifically states that the accommodation of separated prisoners is a power that remains with the Secretary of State although movement is afoot for the NIPS to make relevant decisions relating to national security on behalf of the Secretary of State. The rights discussed below refer in general to convicted, sentenced adult prisoners unless otherwise stated.

120

Jacqueline Monahan and Ann Jemphrey

Legal Rights of Prisoners In 1982, in the House of Lords case of Raymond v Honey, Lord Wilberforce said: ‘Under English law a convicted prisoner, in spite of his (sic) imprisonment, retains all civil rights which are not taken away expressly or by necessary implication.’ This was certainly a great advance on earlier pronouncements, some of which had stated that the courts would not hear the claims of ‘disgruntled’ prisoners. But it still left prison law in a state of uncertainty because, in the absence of a Bill of Rights or written constitution, it is not explicitly clear what ‘civil rights’ any of us have. It is also unclear what rights are removed by ‘necessary implication’. The introduction of the Human Rights Act 1998 has reduced some of this uncertainty. The European Court of Human Rights (ECtHR) has long made evident that the European Convention on Human Rights (ECHR) applies to the circumstances of prisoners, and indeed some of the most significant cases to be decided by the ECtHR relate to the circumstances of people in prison. However, the Convention only sets out broad statements of rights and the ECtHR has made it clear that, where these are subject to limitation, the limitations may be more extensive in respect of those in prison than those at liberty. Perhaps the first place to look for a more detailed indication of what rights and duties prisoners have is the Prison and Young Offenders Centre Rules (NI) (the ‘Rules’). These were extensively overhauled in 1995 and have been subject to further amendment in 1997, 2000, 2001, 2004, 2008 and 2009 and by way of the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 and various statutory rules. The Rules relate to a wide range of matters such as letters, visits, medical treatment, food, religion and discipline. On entry to a prison a prisoner should be given information about these rules and may consult the Rules at any reasonable time (rule 23). The Rules are available to download on the internet and families can obtain a copy of them from the Stationery Office. The Rules, however, are imprecise on many points and although they are normally amplified by Standing Orders (SOs), which in the past were issued by the Northern Ireland Office, it is unclear how regularly the SOs are revised. In fact, the NIPS’s Annual Report 2010–11 notes that one development objective is to ‘take forward a review of Standing Orders’ and adds that ‘many sections have been updated, however a series of anomalies have been identified. The Service will consider how best to address these.’ Copies of the SOs for Northern Ireland are not yet available but will be published on the NIPS website in due course, as already occurs in England and Wales. The vagueness of the Rules, and the apparent secrecy which surrounds SOs, obviously limits their usefulness as a source of prisoners’ rights. Another limitation is the fact that courts have held on a number of occasions that a breach of the Rules by the authorities does not of itself give a prisoner a right to sue. Advocates of prisoners’ rights have consistently criticised this position and called for a legally enforceable code of rights.

Prisoners’ Rights

121

Courts have nevertheless held that they will look at the Rules when deciding whether a right asserted by a prisoner, such as to a fair hearing in a disciplinary procedure, or to privacy as regards correspondence, has been breached. Therefore, a prisoner who feels that the authorities have done something that they have no right to do, or have prevented the prisoner from doing something that he or she has a right to do, might look at the Prison Rules when framing a legal claim. The Rules also contain a set of general principles to guide their interpretation (rule 2). Although the legal status of these principles is unclear, several of them (such as the requirements that all prisoners are treated equally and that reasons are given when a decision affects a prisoner) may be relevant to determining a prisoner’s rights under the Rules where a dispute arises. A claim might take one of a number of forms, for example: — that the Rules have nothing to say on the issue, for example, where a prisoner is injured by another prisoner and claims compensation from the prison authorities; — that the Rules do cover the issue but have been interpreted wrongly, for example, where the authorities claim that the rule entitling a prisoner to a fair disciplinary hearing does not entitle him or her to call a witness; or — that the Rules are themselves invalid because they contravene the Prison Act (NI) 1953 or the Human Rights Act 1998, for example, where the authorities claim that they can intercept all correspondence with lawyers. Asserting prisoners’ legal rights is not, therefore, a simple business, as it may require reference to private law, public law or European law. In addition, in light of the history and political circumstances of Northern Ireland, cases frequently involve claims by the authorities that the right asserted must be denied on security or safety grounds. Prisoners who feel that their rights have been infringed may attempt various avenues of redress, including through the governor, the Prisoner Ombudsman or judicial review. Prisoners are thus advised to seek legal advice, a topic discussed briefly later in this chapter.

Rights Automatically Lost on Conviction Things have changed from the days when conviction for a felony automatically led to a prisoner forfeiting all his or her property. By section 9(1) of Criminal Justice Act (NI) 1953, legal restrictions on the property of convicted prisoners were abolished. Currently, the most important rights lost by convicted prisoners are public rights. — Prisoners are disqualified from voting in Westminster and European Parliament elections during the period of their imprisonment. This remains a very contentious issue, for in 2011 the UK government lost its final appeal against giving prisoners the right to vote following the ruling of the ECtHR

122

Jacqueline Monahan and Ann Jemphrey

against a blanket ban (Hirst v UK (No 2) (2005)). Article 3 of Protocol 1 to the ECHR declares that it is the duty of the state to hold free and fair elections and the ECtHR therefore determined that a blanket prohibition on voting by prisoners is an indiscriminate restriction and incompatible with the Convention. In response to the Hirst judgment the government conceded that it would have to change the law and permit some prisoners to vote and proposals are currently being considered. However, in October 2013 the Supreme Court dismissed an appeal by two prisoners who argued that their rights were being breached by the fact that they were not allowed to vote. The Supreme Court stated that, although it is required to take into account the decisions of the ECtHR, it does not necessarily have to follow them (R (Chester) v Secretary of State for Justice, 2013). — Prisoners are disqualified from becoming members of the House of Commons if they are serving a sentence of one year or more in a prison ‘anywhere in the British Islands or the Republic of Ireland’. (Representation of the People Act 1981, section 1); this does not apply to prisoners on remand, who remain entitled to vote or stand for election at all times. — Any person who has been sentenced to five years or more in prison or youth custody is permanently disqualified from jury service; and any person who has served a sentence in prison or youth custody of any length of time is thereafter disqualified from jury service for 10 years. There is no express disqualification from either voting or standing at local elections, but electoral law relating to proxy and postal voting disables prisoners from casting votes they may be entitled to.

Internal Requests and Complaints Procedures For a variety of reasons a prisoner may wish to complain about prison conditions or prison authorities’ actions without resorting to legal proceedings. If so, he or she may wish to use the internal complaints procedure. This is an alternative procedure: there is no obligation to pursue a grievance internally before taking legal action, although it may be more practical to do so. The courts see litigation as a measure of last resort, so if the matter can be resolved internally that is the desired path. The funding code guidance issued by the Northern Ireland Legal Services Commission reminds practitioners that the courts will scrutinise applications for judicial review and may require the parties to attend a hearing to explain what steps they have taken to resolve a dispute without the involvement of the courts. Similarly, there continue to be cuts to legal aid, so solicitors will no longer be paid to make representations on behalf of prisoners in relation to internal matters such as discipline (further details are available at the Northern Ireland Legal Services Commission website: www.nilsc.co.uk).

Prisoners’ Rights

123

Any prisoner may make any request relating to his or her imprisonment, either verbally or in writing, to an officer, a governor, a member of an Independent Monitoring Board (IMB), or an officer of the DoJvisiting the prison. Such a request must be recorded by the person to whom it is made and it must be reported to the governor as soon as possible. Every request must be considered by, or on behalf of, the governor, and a reply must be given to the prisoner as soon as possible (rule 74). A prisoner also has the right to complain about his or her treatment by any person employed in the NIPS, including provision for his or her welfare while in prison. The term ‘treatment’ may also refer to an omission to act, to prison facilities or to the cleanliness and adequacy of the prison premises. If the complaint does not deal with one of these matters, the residential manager must inform the prisoner in writing within seven days that the complaint is not appropriate to be dealt with under the procedure set out in the Rules (rule 75). There is a two-stage complaints procedure. In the first stage, a prisoner must complete a complaint form and post it in the ‘complaints post box’ or hand it to a residential officer (who must post it in the complaints post box). All complaints in the post box must be recorded on a daily basis and passed to a residential manager who must interview the prisoner within 24 hours. Within three days of the complaint being recorded, the residential manager must then pass the complaint to an ‘appropriate person’, which means an officer or an employee of the NIPS with supervisory or managerial responsibility for the subject matter of the complaint. Provided that the complaint is not determined as being vexatious, repetitive or frivolous, the appropriate person must provide a response to the residential manager as soon as possible and at the latest within 10 days, and the residential manager must give the response to the prisoner within 24 hours of receiving it (rule 76). In the second stage, if the prisoner is not satisfied with the response or has not received a response within 14 days of the complaint being recorded, he or she may make the complaint a second time. The same process and timeline summarised above applies to the second complaint (rule 77). Rule 79 deals with various circumstances, such as if the residential manager fails to perform his or her duties, when the prisoner may refer the matter to the residential manager’s line manager who must then perform the functions of the residential manager outlined above. Rule 79 also depicts how vexatious complaints are to be dealt with and states that if the relevant line manager believes a complaint to be vexatious, repetitive, frivolous, or to raise no substantial issue, he or she must refer the complaint to the governor or, as the case may be, a member of the Senior Civil Service, who will then decide if they also believe the complaint to be vexatious, etc. If that is the case, he or she must write to the prisoner within two days explaining the reason for believing the complaint to be vexatious, etc and that, as a consequence, it will not be dealt with any further. If the governor (or member of the Senior Civil Service) does not agree that the complaint is vexatious, etc, he or she will refer it back to the ‘appropriate person’ (or the line manager) who made the referral

124

Jacqueline Monahan and Ann Jemphrey

and will set out the reasons for the decision and inform the ‘appropriate person’ in writing to process the complaint in accordance with the procedures set out above. Rule 79 offers the detailed procedures necessary for when a complaint relates to the ill-treatment of a prisoner and gives specifics of how a former prisoner or a visitor to a prison may lodge a complaint and what they may complain about. According to the Prison Rules, a ‘residential manager’ means an officer who is normally required by the governor to supervise a residential unit and a ‘residential officer’ means an officer who is normally required by the governor to work in a residential unit.

Northern Ireland Prisoner Ombudsman One of the most important changes of recent years has been the creation of the Northern Ireland Prisoner Ombudsman. Rule 79 describes how, after exhaustion of internal procedures, a prisoner, former prisoner or visitor may submit a complaint to the Ombudsman. Although the Ombudsman is independent of the NIPS, the Rules set out the process for complaining to the Ombudsman. The procedures are somewhat less rigid, as complaints may be made orally or in writing by the prisoner, former prisoner or a visitor. When the complaint is admissible, the Ombudsman will investigate the complaint and prepare a final report, giving a copy of the report to the complainant and also to the DoJ. The DoJ is required to submit a response within 21 days of receipt of the Ombudsman’s final report, which the Ombudsman will forward to the individual who made the complaint (rule 79K). If, during the course of the investigation, the Ombudsman becomes aware of a potential criminal offence he or she must communicate this to the Police Service of Northern Ireland. Similarly, if the Ombudsman becomes aware that a prisoner or an NIPS employee may have committed a disciplinary offence the Ombudsman will communicate this to the DoJ. The Ombudsman has the power to request information relating to the complaint from the prisoner (or former prisoner or visitor) and the DoJ. Rule 79M states that the DoJ ‘may release’ information to the Ombudsman in response to such a request. The Prisoner Ombudsman’s Terms of Reference for Investigating Complaints are more stringent and state: ‘The Director General of the Northern Ireland Prison Service will ensure that the Ombudsman has unfettered access to NIPS documents.’ NIPS employees are required, subject to any legal constraints, to assist the investigations of the Ombudsman (rule 79M). The Prisoner Ombudsman has not yet been placed on a statutory footing, but the DoJ has committed to achieving this in the near future, and it is currently the subject of a public consultation.

Prisoners’ Rights

125

Complaints and Requests: Other Mechanisms Since 2008, the delivery of healthcare within prisons has been the responsibility of the South Eastern Health and Social Care Trust. Responsibility for the investigation of prisoner complaints about health care is with the Northern Ireland Ombudsman (Commissioner for Complaints) and not the Prisoner Ombudsman. However, it is worth noting that the monitoring and inspecting of health services for people detained in prison is under the remit of the Regulation and Quality Improvement Authority (RQIA). The Independent Monitoring Boards (IMBs) are voluntary independent observers of prison regimes. The IMBs aim to ensure the proper treatment of prisoners at all times and to make certain that amenities and services available to prisoners allow for ‘purposeful use of their time’. IMB members visit the prisons weekly and prisoners are allowed to meet with an IMB member upon request or may communicate with the IMB by letter. The United Nations’ Optional Protocol to the Convention Against Torture (OPCAT) aims to protect prisoners from ill-treatment through a system of monitoring conducted by a ‘national preventive mechanism’ (NPM). The RQIA, the Criminal Justice Inspector of Northern Ireland (CJI) and the IMBs together have responsibility as the NPM for people in detention in Northern Ireland. Accordingly, NPM representatives regularly visit prisons in order to examine the treatment of and conditions for prisoners and ‘where necessary, make recommendations to the detaining authorities’. It is worth noting that a prisoner may also wish to write to a Member of the Legislative Assembly (MLA), MP or MEP (SO 5.7.1), but there is no obligation on these politicians to act on any complaint.

Security Classifications Male adult prisoners in Northern Ireland are classified into the following security categories: — Category A: Prisoners whose escape would be highly dangerous to the public or the police or the security of the state, no matter how unlikely that escape might be, and for whom the aim of the NIPS must be to make escape impossible. — Category B: Prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult. — Category C: Prisoners who cannot be trusted in open conditions, but who do not have the resources or the will to make a determined escape attempt. — Category D: Prisoners who can be reasonably trusted in open conditions. Despite this category, such open conditions do not exist within the prison system in Northern Ireland.

126

Jacqueline Monahan and Ann Jemphrey

— Category U:All remand, awaiting trial or awaiting sentence prisoners will be placed in Category U (Unclassified). The only exception is those remand prisoners identified as Category A. According to the NIPS, security categorisation is not directly concerned with the risk of re-offending but focuses on the level of risk that prisoners pose both internally and externally. Since the decision of the Court of Appeal of England and Wales in Ex parte Duggan (1994), it would appear that, the higher the security classification of a prisoner, the greater his or her right to make representations and be given the gist of the reasons on which that classification is based. Female prisoners and young offenders are assessed in terms of supervision requirements, not categorisation.

Access to Legal Advice The ECtHR has recognised that a prisoner’s right of access to justice under Article 6 of the ECHR includes access to lawyers. A prisoner may, therefore, write to a legal adviser with a view to taking legal proceedings over any matter. Where this concerns an allegation of ill-treatment against a prison officer or the prison authorities, such a letter cannot be stopped on the grounds that the complaint has not been raised through normal channels. A prisoner may also write directly to the ECtHR about a complaint and such a letter cannot be stopped (SO 5.10). Any envelope carrying such correspondence should be clearly marked ‘SO 5.10.1 European Court of Human Rights’. When a prisoner writes to a legal adviser in connection with any legal business this correspondence may not be read or stopped unless the governor has reason to believe it contains material that is not relevant to genuine legal business (rule 72(4)). Letters between a prisoner and his or her lawyer should be marked ‘SO 5.3.5 Legal Correspondence’ and will therefore be treated as confidential. Prison authorities are also required to provide reasonable facilities for lawyers to discuss pending proceedings with prisoners (rule 71(1)). SO 5.1.17 indicates that a prisoner is required to give 24 hours’ notice if he or she wishes to discuss proceedings with a legal adviser and needs only to disclose that such a meeting relates to such proceedings. The same SO specifies that all legal visits should be in the sight but not the hearing of a prison officer. Consultations with legal advisers are available via video link in each of the prisons. Rule 71(2) states that the DoJ needs to give permission for the prisoner’s legal adviser to interview the prisoner in connection with any other legal business in the sight but not the hearing of a prison officer and rule 71(1) requires this permission to be given where the prisoner is a party to legal proceedings (ie when a writ has been issued). Prisoners who are party to legal proceedings may also be examined by a doctor of their own choice in the sight but out of the hearing of a prison officer (rule 72 (5)).

Prisoners’ Rights

127

Correspondence: Letters and Telephone Calls Prisoners have a right to correspond with (SO 5): — — — — — — —

their close relatives and friends; their MP, MEP and other specified elected representatives; the Prisoner Ombudsman; the Police Ombudsman; the Northern Ireland Human Rights Commission; the Equality Commission for Northern Ireland; and the ECtHR.

Recent amendments have added the Patient Client Council to the list of statutory bodies, and since 2013 privileged correspondence is permitted to any medical practitioner or consultant who was dealing with the prisoner prior to imprisonment. Correspondence between a prisoner and any of the statutory bodies listed above should be marked ‘SO 5.3.5 Privileged Correspondence’ and shall therefore be considered private and confidential. A prisoner can write to any other person or organisation but the governor may stop any letter if he or she thinks that such correspondence would constitute a genuine and serious threat to the security or good order of the prison (SO 5.3). Prisoners may receive and post one letter after entering prison and thereafter may receive and post one letter per week. This is called the ‘statutory’ letter and postage will be paid for out of public funds. Statutory letters cannot be withdrawn or withheld as a punishment. At the discretion of the DoJ, prisoners can also receive and post one extra letter per week on which the postage is paid at public expense. Subject to the discretion of the governor, a prisoner can write additional letters. Postage on these will normally be at the prisoner’s expense. The number of letters allowed in practice varies from prison to prison. Rule 67(4) provides for the governor to be able to read or examine all letters and communications to and from a prisoner (except those relating to legal proceedings) and they may be stopped if the governor is of the opinion that they may offend a number of grounds, primarily drawn from Articles 8(2) and 10(2) of the ECHR. These include national and prison security, public safety, and good order and discipline in the prison (rule 67(3)). Governors are required to ensure that they have regard to whether the restriction imposed is proportionate to the prisoners’ rights to privacy and freedom of expression. Further guidance on when letters may be read or stopped can be found in SO 5.3.6, but correspondence cannot include, for example: — — — — —

information which encourages violence; material relating to an escape; threats of violence to someone inside or outside the jail; coded messages; or material intended for publication for payment.

128

Jacqueline Monahan and Ann Jemphrey

Letters written by a prisoner which contain prohibited material will be stopped and the prisoner will be told and given an opportunity to rewrite them (SO 5.3.7). Prisoners are able to make telephone calls, although these are subject to monitoring and may be recorded (rule 68A and SO 5.5). Prisoners should be informed that their conversations may be recorded and monitored and prisoners are not permitted to use the telephone for consultations with their legal advisers (SO 5.5).

Current Affairs: Books and Newspapers Rule 66 provides for prisoners to be permitted to keep themselves informed of current affairs. However, books, newspapers and periodicals are all regarded as privileges. It is clearly arguable that denying a prisoner access to a particular document violates his or her right to receive information, as guaranteed by Article 10 of the ECHR, unless justified under the qualifications in Article 10(2) (see Chapter 9). According to SO 4, at least three different newspapers must be provided for the use of prisoners during association. Subject to demand, newspapers in languages other than English (including Irish) may be provided. SO 4 indicates that the privilege of having and receiving books, newspapers and periodicals may be withdrawn only in accordance with rules 35–42 and 95 (which deal with ‘discipline and control’). They may be removed as a punishment or if the governor feels that the content of the newspaper or periodical could prejudice the security, good order or discipline of the prison; could put at risk the lives of prison staff; is wholly or mostly in a language other than English or Irish (except where the prisoner is wholly unfamiliar with English); or in the medical officer’s opinion it could have an adverse affect on the prisoner from a medical or psychological point of view. Rule 54 states that each prison will have a library which every prisoner is allowed to visit in order to borrow books, subject to ‘the requirements of security, control and good order’ and in accordance with conditions set by the governor or the DoJ.

Visits In addition to legal visits outlined above, prisoners are entitled to visits from families, including children, and friends subject to the discretion of the governor and the DoJ. A prisoner must be informed if any application for a visiting permit is refused. Visits between close relatives where both are in prison are permitted provided this does not pose a threat to the security or good order of the prison. Prisoners are also entitled to chaplaincy visits. As there is some

Prisoners’ Rights

129

variation in entitlement to prison visits dependent on prisoner regime level and prison establishment, and on whether the prisoner is remanded or sentenced, it is advisable to check current visiting arrangements with each prison. Prisoners may apply for child-centred visits to help build relationships with their children and grandchildren. Subject to meeting the eligibility criteria, a child-centred visit may be offered each month as part of a person’s normal visits entitlement. Hydebank Wood Women’s Prison used to provide an extended visits scheme for mothers and children in an onsite mobile home. Any mother in custody with a child under the age of 18 could apply to participate in the scheme, with each application considered on its individual merits. However, when those housed in the YOC who had children expressed a wish to use the facility, it raised an equality issue. In its 2012– 13 Annual Report, the IMB expressed disappointment that ‘instead of widening the scheme to include the boys, the NIPS suspended it altogether’. The Board has recommended that a solution be found ‘to reinstate family visits in the caravan’ and to widen it to include all prisoners in Hydebank Wood Women’s Prison and the YOC who have children and who are assessed as suitable to receive such visits. Further information regarding prison visits in Magilligan and Hydebank can be obtained from the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO) which manages the Visitor Centre at both these prisons and information can be obtained from the Quaker Visitors’ Centre about the range of services provided at Maghaberry. Additional information regarding what help may be available for the cost of visiting and transport to the prisons can be obtained from the Visitor Centres and/or Family Link (NIACRO). For contact details see the list at the end of this chapter.

Clothes Both remand and sentenced prisoners are entitled to wear their own clothes. The governor may, however, prohibit the wearing of certain clothing if this is judged to be prejudicial to the good order or security of the prison. Any prisoner unable to provide their own clothing will have it supplied by the prison. Limits on the amount of clothing a prisoner can possess are set by each prison, but generally prisoners are allowed up to three of each item of clothing. Parcels may include clothing and footwear.

Money Visitors can sign over limited sums of money at Visitors’ Reception to both remand and sentenced prisoners. In very exceptional circumstances and with the prior agreement of the NIPS, money can be sent to a prisoner by cheque or postal

130

Jacqueline Monahan and Ann Jemphrey

order (rule 18). See also the NIPS Visitor Information Booklet, which is available to download from the DOJ website.

Food Unless the governor, registered GP or healthcare officer directs otherwise, no prisoner is allowed to have any food other than that provided by the prison (rule 81(2)). All prisoners should be provided with food which is wholesome, nutritious and well prepared, taking into account age, health and work and, as far as practicable, religious or cultural requirements (rule 82(1)). Governors should observe the relevant provisions of food and drugs laws. A prisoner should make any complaint about food received as soon as possible. The governor should properly consider any complaints and take appropriate action where any shortcoming is discovered (rule 82(3)).

Education Educational classes have to be established at every prison and the prison authorities are required to encourage every prisoner who is able to benefit from educational activities to do so. Programmes in each prison should reflect those provided in the outside community and take account of individual needs of prisoners (SO 7.3.1). Special attention should be given to prisoners with literacy or numeracy difficulties (rule 52(1)). As far as possible, reasonable facilities should be provided for private study of correspondence courses. As noted previously, each prison should provide a library. A recent judicial review successfully challenged poor access to library services in HMP Magilligan in breach of rule 54(1)(see Application for Judicial Review by Paul Morgan [2010] NIQB 103).

Religion Where a prisoner belongs to a denomination for which no chaplain has been appointed to that prison, the governor is required to do what is reasonable, if requested by the prisoner, to arrange for visits by a minister or priest of that denomination. A prisoner may also be allowed an occasional visit by a family priest or minister, or by the priest or minister of the area where he or she last resided. Such visits do not require a permit. Visits from clergy are organised through the prison chaplains and are in addition to domestic visits. A prisoner

Prisoners’ Rights

131

who is recorded as a member of a religious denomination (rule 57) will not be required to work on his or her day of religious observance (rule 51(8)).

Emblems Despite various legal challenges over the years (see, eg Donaldson v UK, 2011 and Re Donaldson’s Application, 2008) prisoners do not have the right to wear emblems which may be viewed as political or sectarian. SO 4.9 permits governors an ‘overriding discretion to prohibit the possession of any item listed in the interest of the security, good order or discipline of the prison’ and SO 4.12 states that prisoners ‘may not wear political emblems, nor should they be displayed by prisoners in their cells’. Prison Rule 38 (23A) concerning offences against prison discipline states that a prisoner will be guilty of an offence against prison discipline, ‘if he [or she] wears an item of clothing, or wears, carries or displays an article in such a way or in such circumstances as to arouse reasonable suspicion that he [or she] is a member or a supporter of a proscribed organisation’. This prohibits, for example, the wearing of an Easter lily in commemoration of the 1916 Easter Rising. A notice to prisoners on 15 March 2000 issued by the then governor of Maghaberry permitted the wearing of shamrocks on St Patrick’s Day and poppies for Remembrance Day, as ‘these emblems are non-political and non-sectarian’. An instruction was recently issued to governors to ban the playing of music that may be associated with one community or the other.

Medical Treatment, Hygiene and Exercise In 2008, responsibility for commissioning and delivering prison health care transferred from the NIPS to the Department of Health, Social Services and Public Safety, specifically the South Eastern Health and Social Care Trust. A prisoner who feels unwell should be allowed to see a health care professional. Where a registered GP or the health care manager believes that a prisoner’s health is endangered by imprisonment, he or she should inform the governor and such information should be passed to the DoJ and the Regional Health and Social Care Board (rule 88(1)). A prisoner can refuse any medical treatment unless it is an emergency and must give written consent before any major form of treatment is given. Time spent in hospital counts as part of a prisoner’s sentence. However, if a prisoner has been transferred to a secure mental hospital and upon his or her release date a decision is taken by a medical doctor that the prisoner–patient should be compulsorily detained, the person will remain detained but as a detained patient rather than a detained prisoner–patient. Under article 53(1) of the Mental Health (NI)

132

Jacqueline Monahan and Ann Jemphrey

Order 1986, the Secretary of State can (provided the conditions set out therein are satisfied) direct that a prisoner be admitted to hospital. The Rules also contain a number of provisions relating to general hygiene, for example, ensuring every prisoner is able to have a hot bath or shower once a week and placing a duty on the prison authorities to provide prisoners with toilet articles necessary for health and cleanliness. Prisoners are entitled to one hour’s outdoor exercise a day, weather permitting. If the weather is bad, the exercise can be taken indoors. SO 6.4 instructs governors to observe the provisions of the Health and Safety at Work Act (NI) Order 1978 with regard to washing and bathing facilities. In law the State owes a ‘duty of care’ to protect prisoners from injury. Therefore, if a prisoner is injured while working, or as the result of an assault by another prisoner or a prison officer, he or she may be able to claim compensation from the prison authorities. Furthermore, in September 2011, section 2 (1)(d) of the Corporate Manslaughter and Corporate Homicide Act 2007 came into effect. This provides for new corporate manslaughter liability for those holding people in custody. The NIPS could be held to account under this Act if negligence causes a death.

Drugs All prisoners, including those at risk of suicide and self-harm, have the right to adequate health care and to be free from intimidation, bullying and an unsafe environment, all of which are issues related to the drugs problem within the prisons. The problems relating to the misuse of prescription drugs and illegal drugs within the prisons have been widely reported, and the NIPS has a duty to address them. Rule 83 prohibits a prisoner from having any drugs or from being given prescription medicine unless prescribed by a registered GP, a nurse independent prescriber or a pharmacist independent prescriber. In addition to making illegal drugs inaccessible, the NIPS, in conjunction with the South Eastern Health and Social Services Trust, must manage and monitor prescription drugs so as to avoid prisoners stockpiling prescribed medication, in line with SO 10.1.11 ‘Recording of medicines’. Various other SOs and Prison Rules touch on related issues.

Searches Searches may be carried out at such times as the governor orders but must take place according to the Rules (rule 16). Again, there are some variations in search procedures within each prison, but in general all prisoners are searched on reception to prison and on final departure from prison. A recent application for judicial review challenged the NIPS policy on full body searching of prisoners who are

Prisoners’ Rights

133

being discharged on acquittal or completion of their sentence and forcible full body searching of non-compliant prisoners (see Re Conway’s Application, 2011). Although the challenge was dismissed, the Court of Appeal decided that the case should be re-assessed based on whether the policy was sufficiently flexible in exceptional circumstances. Following re-examination by the High Court, the policy was found not to be illegal or disproportionate because there was demonstrable flexibility in its application of it (see Re Conway’s Application, 2013). In addition, a prisoner can be searched before or following a visit, and on any occasion when he or she has or is likely to come into contact with persons from outside, or when a prisoner’s cell or property is being searched. The governor can direct searches at such other times as are considered necessary for the safety and security of the prison. The governor may also direct a prisoner to undergo a ‘full search’ where there are grounds to believe that he or she is in possession of a prohibited or unauthorised article. Where a prisoner is required to undress for a search it can be conducted only by and in the presence of officers of the same sex as the prisoner and not in the sight of another prisoner. It must be conducted in as seemly a manner as is consistent with anything being discovered. The rules do not permit body cavity searches but a prisoner may be required to open his or her mouth for visual inspection (rule 16(9)). Searches carried out in a way that violates these guidelines could constitute an assault. In September 2012, the NIPS commenced its trial of full body imaging scanners in both Magilligan and Hydebank YOC as an alternative to full body searching of prisoners entering and leaving prison. But in February 2013 it was reported that the equipment failed to detect nearly one-half of all the test items during the pilot scheme. In May 2013, the Prison Service applied to the Department of Energy and Climate Change to pilot an x-ray scanner as a possible alternative to full searching on entry to and exit from the prison, although the NIPS Director General, Sue McAllister, confirmed that the requirement for full searching on entry to and exit from the prison will remain until a satisfactory alternative method can be found (but not for female prisoners). A two-year pilot is currently underway. Full-body searches are only undertaken where there is intelligence indicating its necessity. The governor may also require a visitor to be searched (rule 73), but any search under this rule requires the consent of the visitor and if the visitor withholds consent the governor may refuse the visitor admission. Reasons for denying admission must be recorded and reported to the DoJ.

Restriction of Association The governor may restrict a prisoner’s association with other prisoners primarily where he or she suspects that a prisoner has any unauthorised or prohibited article hidden in his or her body (rule 32). However, a governor may not segregate

134

Jacqueline Monahan and Ann Jemphrey

a prisoner for more than 72 hours without the agreement of the DoJ (rule 32(2)). If such authority is given, the position must be reviewed every month. The governor also is required to inform a member of the IMB no later than 24 hours after a prisoner’s association is restricted. A member of the IMB may be present at all reviews of the restriction of association of the prisoner and, if the IMB is not satisfied about any matter, it may first draw this to the attention of the governor, and if still not satisfied, to the attention of the DoJ and then, if necessary, to that of the Secretary of State (rule 32). Any recommendation that a prisoner should resume full or increased association on health and well-being grounds made by a registered GP or a health care officer, must be fully considered by the governor (rule 32 (4)). There are other circumstances where a prisoner may be placed in temporary confinement in a special cell or observation cell. Recent amendments to prison rules have ensured that there will be differentiation between vulnerable prisoners temporarily confined for care reasons and prisoners confined for disciplinary reasons (rules 47 and 88A). The purpose of the restriction must be for a legitimate aim, notably the protection of the rights, freedoms, health or safety of others, and must be proportionate (see Re McCrea’s Application, 2013).

Women Prisoners Women prisoners were transferred from Mourne House in Maghaberry Prison to Hydebank Wood Prison in 2004. Between October and December 2013 the number of women prisoners (including those on remand) ranged from 53 to 74. As this number is a relatively small proportion of the overall total prison population, there may be a detrimental effect on women prisoners’ access to work and education programmes. In general, Prison Rules and SOs apply equally to women as to men, but there are some differences. Rule 91(1) indicates that in matters of work, education, recreation or privileges governors may provide a different regime for female prisoners. However rule 91(2) indicates that this does not permit discrimination which would be unlawful if it occurred outside the prison. The most significant difference relates to pregnancy and young children. Under rule 92(1), prisoners expected to give birth before the end of their sentence should be removed from the prison to a suitable hospital for whatever period a registered GP considers necessary. Mother and baby facilities exist at Hydebank Wood Women’s Prison and, subject to any conditions the DoJ thinks fit, a female prisoner may be allowed to keep her baby with her and be provided with everything necessary for the baby’s care. Once the baby reaches nine months, consideration will be given as to whether the child should stay with its mother in prison or be removed to the care of a relative, friend or appropriate local authority (SO 10.1.19).

Prisoners’ Rights

135

Another difference is in the search procedures for women prisoners: policy revision has occurred whereby in the majority of searches a woman will not have to remove her underwear. This should only be required if suspicion or intelligence suggests that it is necessary.

Separated Prisoners In accepting the Steele Review (2003) recommendations, the UK government committed to providing separate accommodation for paramilitary prisoners who, on the grounds of safety, wish to be held apart from prisoners belonging to other paramilitary groups and from prisoners who do not belong to such groups. That separate accommodation has been provided at Maghaberry Prison within Bush House for Loyalist prisoners and Roe House for Republican prisoners. A male adult prisoner will be entitled to be admitted to separated conditions in Bush or Roe House in Maghaberry provided that the Secretary of State is satisfied that a number of conditions relating to security, safety and good order are met, and that the prisoner is a member or supporter of a proscribed organisation connected with the affairs of Northern Ireland. Whereas a small number of rules do not apply to separated prisoners (see rule 109A), special rules apply in situations where loss of remission may occur as a result of a disciplinary offence. In such circumstances the charge must be referred to ‘the Commissioner’, who is an officer appointed by the DoJ to investigate and hear the complaint. After inquiring into any charge, the Commissioner may make a disciplinary ‘award’ (ie punishment) including loss of remission for a period not exceeding 180 days. A separated prisoner charged with an offence referred to the Commissioner is entitled to be present at the oral hearing and to be legally represented (rule 109D). Search procedures for separated prisoners have been the focus of a longrunning dispute. Following a protest by Republican prisoners in Roe House, the Prison Service and the prisoners agreed to engage in a facilitation process leading to an agreement in August 2010, which has since broken down. Consequently, some separated prisoners in Roe House engaged in a ‘dirty protest’, which came to an end in November 2012. As referred to in the section on searches above, issues relating to the trialling of alternative search procedures await resolution.

Discipline Prisoners may be subject to disciplinary punishment only for a limited and specific number of offences. These offences have a definable content and convictions

136

Jacqueline Monahan and Ann Jemphrey

on disciplinary charges may be challenged if a governor has misinterpreted the rule setting out an offence. A prisoner should be given notice of the charges as soon as possible. Except in exceptional circumstances, the governor must inquire into the charge on the next day and at that inquiry give the prisoner a fuller account of what is alleged (rule 36). A prisoner must be given sufficient time to prepare a defence; if he or she feels that the time allowed was insufficient, an adjournment should be asked for at any subsequent hearing. Unless the charge is thought to be so serious as to amount to a criminal offence and the police are called to investigate, the charge will be heard by a governor or deputy governor. Where a case comes before a governor, a prisoner is entitled to a fair hearing and to put his or her own case fully (rule 36(4)). In respect of internal disciplinary matters, a prisoner has the right to take legal advice and consult with his or her lawyer in advance of the disciplinary hearing. For example, the prisoner can talk to his or her lawyer by telephone and receive a legal visit before a hearing, but there is no right for the legal representative to attend the disciplinary hearing. Any punishment given must be clearly set out in the decision of the governor; it cannot be added to by a subsequent action of the governor. If the prisoner is found guilty, a range of punishments, as outlined in rule 39, may be imposed. As a result of the English case of Ezeh and Connors v UK (2002), where the ECtHR indicated that it would be a breach of Article 6 of the ECHR for a governor to lengthen a prisoner’s sentence by imposing a penalty of added days or loss of remission, former rule 42 (prospective loss of remission) has been revoked. It seems that it may still be possible for the NIPS to enforce a loss of remission on a separated prisoner and the NIPS retains the services of a retired judge to place the hearing on a quasi-judicial footing, although this has not happened to date. If a prisoner feels that any requirements or procedures have not been met and that he or she has been denied a fair hearing, he or she may seek to have the charge quashed, although failure to comply with a procedural requirement does not automatically ensure that a charge will be quashed on judicial review (see Chapter 2). A prisoner may also petition the DoJ to quash or mitigate a disciplinary charge where he or she feels that the charge was unfair or the punishment too severe. The DoJ also has the power to review disciplinary charges or punishment (rule 44). In this rule, ‘mitigate’ means to reduce the punishment or substitute another punishment, which is, in the opinion of the DoJ or the governor, less severe.

Temporary Release Legislation providing temporary release for prisoners is governed by the Prison Act (NI) 1953, section 13(1)(c), with provisions for life sentence prisoners contained in the Life Sentences (NI) Order 2001. Rule 27(2) states that any eligible

Prisoners’ Rights

137

prisoner ‘may be temporarily released for any period or periods and subject to any conditions’, with exceptions outlined in rule 27(4). Examples of when temporary release may be granted include: to engage in employment, to receive instruction or training, to assist in the transition from prison to outside life, or to receive health care (rule 27(2)). A number of schemes are outlined below.

Pre-release Home and Resettlement Leave The NIPS has introduced revised procedures for sentenced prisoners who are coming to the end of their sentence and wish to apply for short periods of temporary release. The Home Leave Resettlement Board will normally grant leave but the governor (or deputy) retains the right to veto any decision. Eligibility is based on length of continuous custody and leave is still viewed as a ‘privilege’ to be earned. Other criteria on which decisions may be taken include the prisoner’s behaviour, the level of regime and programme participation, the outcome of risk assessments and the consideration of human rights issues, primarily Article 8(1) of the ECHR (the right to a private and family life). For life sentence prisoners, the prime consideration for granting temporary release is the measure of risk to the public together with the potential impact on victims. For those prisoners who do not have a tariff, ministerial permission is needed.

Compassionate Temporary Release (CTR) Scheme All sentenced prisoners may apply for CTR. In the case of the death of a member of the prisoner’s immediate family, a period of temporary release up to a maximum of 72 hours may be granted (see, eg Re McGlinchey’s Application, 2013). In the case of critical illness, approval may be given for a daytime temporary release of an agreed duration.

Home Visits Scheme Temporary release to allow a home visit is subject to risk assessment and is available where a member of the prisoner’s immediate family is chronically ill, housebound and physically unable to visit the prisoner. Applications will be considered for a one-day visit of an agreed duration every six months. Home leave at Christmas may be granted to eligible prisoners and the scheme is subject to ministerial approval.

Temporary Release for Medical Purposes Eligible prisoners can be considered for temporary release for in-patient or outpatient care where care cannot await the patient’s release or cannot be provided in

138

Jacqueline Monahan and Ann Jemphrey

prison. Any prisoner refused medical leave is advised that the appropriate security and administrative arrangements will be put in place to enable receipt of necessary hospital care.

Early Release Under the Northern Ireland (Sentences) Act 1998 This legislation established a mechanism for the early release of a particular class of prisoners. Those included were prisoners convicted of scheduled offences and sentenced to between five years and life, who were not supporters of one of a range of terrorist organisations specified by the Secretary of State. The Act provided for such prisoners to be eligible for release within a certain period of time after being sentenced and for them to be eligible for release within two years of its coming into force. Once a prisoner was eligible for release his or her case was considered by persons known as the Sentence Review Commissioners, appointed by the Secretary of State. The Commissioners ordered release unless they were of the opinion that the prisoner would become involved in acts of terrorism or (in the case of a life sentence prisoner) that he or she would become a danger to the public. By July 2001, 444 prisoners had been released in Northern Ireland and 57 in the Republic of Ireland. All prisoners released were released on licence, and they are subject to recall by the Secretary of State if he or she believes that the prisoner has broken or is likely to break the licence conditions. Any recalls must be referred by the Secretary of State to the Sentence Review Commissioners for review.

Life Sentence Prisoners In addition to the life sentence, which is the mandatory sentence for the offence of murder, the introduction of the Criminal Justice (NI) Order 2008 makes available new public protection sentences which are called Indeterminate Custodial Sentences (ICS) and Extended Custodial Sentences (ECS) for those convicted of specified offences. The ICS sentence means that an offender can potentially be imprisoned for life and the court will specify a tariff which must be for at least two years. Once the ICS tariff has been completed, following risk assessment by the Parole Commissioners, the prisoner will be released or required to remain in prison until the risk has sufficiently diminished to allow release and supervision in the community.

Prisoners’ Rights

139

The ECS has a determinate custodial part of at least one year, which is followed by an extended licence period. With an ECS, release may be possible during the second half of the sentence based on the risk assessment by the Parole Commissioners. If not released then, the prisoner must be released at the end of the custodial part of the sentence. In other circumstances where release is not directed, the Parole Commissioners may recommend a date for the next review which generally should be no later than one year from the date of decision. If a later date is recommended, the prisoner should be informed of the reasons for this. As with life sentence prisoners, the Parole Commissioners may recommend that an ICS or ECS prisoner undertakes offending behaviour programmes and other courses of action before he or she will be considered ‘safe’ to release. However, when the new custodial sentences became available there were neither the systems nor the resources available to make them function as Parliament had intended. In England and Wales prisoners launched legal challenges to their continued detention beyond tariff on the grounds that the Parole Board there had been unable to assess their suitability for release since they had not had the opportunity to engage in rehabilitative work due to a lack of resources in the prison (see Secretary of State for Justice v James, 2009). The House of Lords held that the Secretary of State had breached his public law duty to provide such courses as would enable prisoners serving indeterminate sentences for public protection to demonstrate their safety for release. However, the failure to provide the courses did not render their post-tariff detention unlawful under Article 5(4) of the ECHR. This decision was later largely endorsed by the ECtHR (James, Well and Lee v UK, 2012). Following release, specific licence conditions and supervision will apply depending on type of sentence. If, during their licence period, offenders break a licence condition or commit another offence, they may be recalled to prison by the Secretary of State, with such decisions reviewed by the Parole Commissioners. The parole review process is complex and the Parole Commissioners have provided a range of step-by-step guides, including for prisoners serving an ICS, an ECS or a life sentence, including life sentence prisoners who have been recalled to prison after being released on licence (see www.parolecomni.org.uk).

Transfer of Prisoners Prisoners from Northern Ireland who are imprisoned in Great Britain may apply to be transferred to Northern Ireland. They have no legal right to transfer and the former European Commission of Human Rights stated that only in ‘exceptional circumstances’ will failure to transfer constitute a breach of the right to a private

140

Jacqueline Monahan and Ann Jemphrey

and family life guaranteed by the ECHR. Nevertheless, the Crime (Sentences) Act 1997 (as amended by the Justice (NI) Act 2004, section 13) permits the transfer of prisoners within ‘the British Islands’. The authorities must consider all transfer requests and have indicated that they will grant them where the prisoner is sentenced and: — has more than six months of his or her sentence still to serve; — was ordinarily resident in Northern Ireland before imprisonment or has close relatives in Northern Ireland and it is reasonably believed that he or she has a firm intention of taking up residence there on release; and — has no outstanding appeals or other criminal proceedings pending. Transfer may take place on either a ‘restricted’ or ‘unrestricted’ basis. If the former applies the sending jurisdiction will continue to administer some aspects of release; if the latter applies the prisoner will be treated as though he or she had been sentenced in that jurisdiction. Prisoners on restricted transfer can be returned if the Secretary of State is of the view that the purposes of the transfer are no longer being fulfilled. However, even prisoners on restricted transfer to Northern Ireland can apply for home leave and temporary release on the same basis as prisoners sentenced in Northern Ireland.

Discharge Grant Upon release prisoners receive a discharge grant of which there are two rates in effect since 8 April 2013. The Standard Grant rate for all eligible prisoners is £71.70. The Higher Grant rate is £144.74. The higher rate grant is paid provided it is established that a prisoner needs to seek and pay for accommodation.

The Position of Ex-prisoners A prison sentence can continue to have a legal effect on someone even after he or she has left prison. Under the Rehabilitation of Offenders (NI) Order 1978 a person can be dismissed or a job offer withdrawn if he or she fails to provide information, when asked, about previous criminal convictions. However, there is no obligation to declare a conviction if the employer does not ask about previous convictions. There is also no obligation to declare a conviction and sentence if it has become ‘spent’ under the terms of the 1978 Order. The Order contains a complex set of rules for determining when convictions are spent, especially in relation to those with several criminal convictions, and anyone

Prisoners’ Rights

141

applying for a job with a criminal record would be wise to seek advice on their application. Some jobs and professions are considered so sensitive or risky that all criminal offences must be declared. A range of posts and professions is specified in the Rehabilitation of Offenders (Exceptions) Order (NI) 1979 (amended in 1987, 2001, 2003 and 2009). The Rehabilitation of Offenders (Exceptions) (Amendment) Order (NI) 2012 makes further amendments and updates the law relating to circumstances when past convictions must be declared, when required, for employment purposes. Employers recruiting people to fill ‘excepted’ positions are entitled to ask about all previous convictions, spent and unspent, and to take them into account when assessing an applicant’s suitability for the work. The range of occupations that are excepted under the legislation continues to expand with further amendments and generally includes: — — — —

work with children or vulnerable adults; professions that are regulated by law; posts involving national security; and posts concerned with the administration of justice.

The Safeguarding Vulnerable Groups (NI) Order 2007, as amended by the Protection of Freedoms Act 2012, provides the legislative framework for ‘Disclosure and Barring Arrangements’, which replaces the former Vetting and Barring Scheme. The legislation makes arrangements for individuals who are unsuitable for working (in a paid or voluntary capacity) with vulnerable groups, including children, to be barred from such work. Work which a person who is barred must not do is known as ‘regulated activity’ and is defined in Schedule 2 to the above Order (as amended by the Protection of Freedoms Act 2012). The Department of Health, Social Services and Public Safety (DHSSPS) website provides information on what types of activities and roles fall within the scope of regulated activity. Since December 2012, the Disclosure and Barring Service (DBS) has been responsible for maintaining the list of individuals barred from engaging in regulated activity with children and/or adults across England, Wales and Northern Ireland. A regulated activity provider must refer to the DBS for a decision on anyone who has harmed or poses a risk of harm to a child and who has been removed from working in regulated activity or would have been removed had they not left. For further information, including guidance on making referrals to the DBS, see DBS factsheets (www.gov.uk/government/publications/dbsreferrals-factsheets). Further changes are currently afoot regarding employment and disclosure legislation. AccessNI provides a criminal record disclosure service in Northern Ireland. Organisations seeking to engage an individual in work in regulated activity can obtain an enhanced disclosure with a barred checklist from AccessNI.

142

Jacqueline Monahan and Ann Jemphrey

Employing Ex-prisoners with Conflict-related Convictions As mentioned previously, legislative provisions were made to facilitate the early release within two years of all paramilitary prisoners who were members of paramilitary groups specified by the Secretary of State. The criteria for assessing individuals for release included that they were members of organisations on ceasefire and that if released they were not likely to become members of groups not on ceasefire and would not be a danger to the public. In 2007 the Office of the First Minister and Deputy First Minister produced best practice guidelines for employers entitled ‘Recruiting people with conflictrelated convictions’. These state that, before coming to a decision, the employer should consider a number of factors including: — the onus of proof is on the employer to show material relevance; — the conviction must be manifestly incompatible with the position in question; — the seriousness of the offence is not in and of itself enough to make a conviction materially relevant; and — it will only be in very exceptional circumstances that a conviction will be relevant. Since the production of the guidelines for employers, a report has been issued by a Review Panel. Amongst its conclusions, the view has been taken that the Employers’ Guidance should be implemented by legislative change (see ‘Report of the Review Panel: Employers Guidance on Recruiting People with ConflictRelated Convictions’, 2012). It is advisable to contact NIACRO for advice on the requirements of the Rehabilitation of Offenders (NI) Order 1978, the Rehabilitation of Offenders (Exceptions) Order (NI) 1979 and other associated legislation mentioned above (see also the decision of the House of Lords in McConkey v The Simon Community, 2009).

Useful Contacts Access NI PO Box 1085 Belfast BT5 9BD tel: 0300 200 7888 www.dojni.gov.uk/accessni Coiste na n-Iarchimí (a republican ex-prisoners association) 10 Beechmount Avenue

Prisoners’ Rights

143

Belfast BT12 7NA tel: 028 9020 0770 www.coiste.com Department of Health, Social Services and Public Safety (DHSSPS) Information Office C5.20 Castle Buildings Stormont Belfast BT4 3SQ Tel: 02890520500 www.dhssps.gov.uk EPIC (a loyalist ex-prisoners association) 33A Woodvale Road Belfast BT13 3BN tel: 028 9074 8922 www.epic.msi-it.co.uk Extern (an NGO which diverts and assists offenders) Hydepark House 3 McKinney Rd Newtownabbey BT36 4PE tel: 028 9084 0555 www.extern.org HMP Maghaberry Old Road Ballinderry Upper Lisburn BT28 2NF tel: 028 9261 1888 HMP Magilligan Point Road Limavady BT49 0LR tel: 028 7776 3311 Hydebank Wood Young Offenders Centre and Hydebank Wood Women’s Prison Hospital Road Belfast BT8 8NA tel: 028 9025 3666 Northern Ireland Prison Service Prison Service Headquarters Dundonald House Upper Newtownards Road

144

Jacqueline Monahan and Ann Jemphrey

Belfast BT4 3SU tel: 028 9052 2922 www.dojni.gov.uk/index/ni-prison-service.htm The Ombudsman (the Commissioner for Complaints) 33 Wellington Place Belfast BT1 6HN tel: 028 9023 3821 www.ni-ombudsman.org.uk Prisoner Ombudsman for Northern Ireland Unit 2 Walled Garden Stormont Estate Belfast BT4 3SH tel: 028 9052 7771 www.niprisonerombudsman.gov.uk Independent Monitoring Boards IMB Secretariat Room A4.12 Castle Buildings Stormont Estate Belfast BT4 3SG tel: 028 9052 8580 www.imb-ni.org.uk Monica Barritt Visitors’ Centre (Quakers) HMP Maghaberry Old Road Ballinderry Upper Lisburn BT28 2PT tel: 028 9261 1213 www.ulsterquakerservice.com/monica-barritt-visitors-centre.php Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO) Amelia House 4 Amelia St Belfast BT2 7GS tel: 028 9032 0157 www.niacro.co.uk Patient and Client Council FREEPOST Ormeau Baths, 1st floor

Prisoners’ Rights 18 Ormeau Avenue Belfast BT2 8HS tel: 0800 917 0222 www.patientclientcouncil.hscni.net The Stationery Office tel: 0870 600 5522 http://www.tsoshop.co.uk

145

7 Immigration ANNE GRIMES AND FIDELMA O’HAGAN

Immigration law is the system of laws and rules governing who can enter and live in the UK, under what conditions, and for how long. It applies uniformly throughout the UK. It is a reserved matter, meaning that the relevant laws are enacted at Westminster rather than at Stormont. The Immigration Acts 1971 and 1988 set out the system of immigration control and provide for officials to enforce it. Section 3(2) of the 1971 Act empowers the Home Secretary to make Immigration Rules. The current Rules came into effect on 1 October 1994 but there have been many amendments since then. The Immigration Rules set out in detail the circumstances in which ‘leave’ (ie lawful permission) to enter or remain in the UK is to be granted or refused to persons who are subject to immigration control. They are reproduced in full on the website of the UK Visas and Immigration (UKVI) (previously called UK Border Agency (UKBA)). The UKVI is an agency of the Home Office which administers immigration and asylum law in the UK. In addition to the Immigration Rules, the law in this area is frequently amended and updated through primary legislation and regulations. Immigration has become a highly complex area of law and it is advisable to seek advice from a solicitor or one of the agencies set out below before lodging an application or pursuing an appeal against a negative decision.

Immigration Control Certain categories of people are not subject to any immigration control and can freely enter and remain in the UK.

British Citizens Before 1 January 1983 all people born in the UK were British citizens. Since that date, children born in the UK are British citizens only if one of their parents is ’settled’ in the UK (ie has permission to reside in the UK indefinitely) or if one

148

Anne Grimes and Fidelma O’Hagan

parent was a British citizen at the time of the child’s birth. People who are not British citizens by birth may later be registered or naturalised as British citizens in certain circumstances. There are some people who carry versions of British passports, that is, British Overseas Citizens, British Dependent Territories Citizens, British Protected Persons, British Subjects and British Nationals (Overseas), but these people are all not British citizens and are subject to full immigration control.

People with the ‘Right of Abode’ in the UK People with a ‘right of abode’ in the UK are free to live in, and come and go from, the UK without restrictions. All British citizens have a right of abode. A Commonwealth citizen who was a Commonwealth citizen with a right of abode in the UK immediately before the commencement of the British Nationality Act 1981, and has not ceased to be a Commonwealth citizen, also has a right of abode in the UK. All other Commonwealth citizens are subject to full immigration control.

Irish Citizens Irish citizenship can be obtained by descent, naturalisation or marriage, as well as by birth in Ireland. All persons born before 1 January 2005 anywhere on the island of Ireland (ie in the Republic of Ireland or Northern Ireland) are entitled to Irish citizenship, irrespective of their parents’ nationality or immigration status. People born on the island of Ireland after 1 January 2005 are entitled to Irish citizenship only if at the time of their birth one of their parents: — — — — —

is Irish or entitled to be Irish; is settled in Ireland; is British; is settled in the UK; or had been living legally in Ireland for three out of the previous four years at the time of their child’s birth (although time spent as a student or as an asylum seeker does not count for this purpose).

Irish citizens entering the UK are exempt from immigration control. The Republic of Ireland, the UK, the Isle of Man and the Channel Islands form a Common Travel Area (CTA). No system of immigration control exists for nationals of these areas travelling within the CTA. Non-Irish citizens are governed by the Immigration (Control of Entry through Republic of Ireland) Order 1972 (see below).

European Economic Area (EEA) Nationals EEA nationals and their family members are not subject to the requirements of the Immigration Rules but in order to have an EU law right to reside in the UK

Immigration

149

they must comply with relevant EU law as set out in EU Treaties, Directives and domestic legislation in the form of the Immigration (European Economic Area) Regulations 2006 (as amended). Further information about EEA nationals and their families is set out below.

Others All people apart from those in the above categories are subject to full immigration control and must therefore obtain leave to enter or remain in the UK.

Immigration Control Before Entry Prior to travelling to the UK, nationals of certain countries listed in the Appendix to the Immigration Rules, known as ‘visa nationals’, as well as people wishing to come to the UK for certain purposes (such as to settle as a spouse), are required to obtain entry clearance (often known as an entry certificate or visa) from a visa application centre in a British Embassy or High Commission abroad. The UKVI website provides an up-to-date list of visa national countries. The list consists mostly of ‘developing countries’ and is regularly amended. Historically, when many refugees have come to the UK from a particular country, the UK has named it a visa national country. Entry clearance applications are dealt with by Entry Clearance Officers (ECOs) at the application centres abroad. Entry clearance normally takes the form of a stamp or sticker endorsed on the person’s passport. Refusal of entry clearance will normally also be endorsed on the passport. Applicants for entry clearance as a visitor may apply in any country for this type of visa, while all other applicants must apply in the country in which they live. Applicants are required to pay a fee and will normally be required to submit biometric information, that is, their fingerprints and facial image; applications may be made in person or online depending on the centre. People cannot obtain visas as refugees, as they must be outside their own country in order to claim asylum. The UKVI considers that over 75 per cent of the world’s population requires a visa to come to the UK. All business people, workers and students staying longer than six months in the UK need a visa, regardless of their nationality, unless they have a right of entry under EU law (see below). Visa nationals who have already been granted leave to enter or remain in the UK for more than six months, or people who have been granted indefinite leave to remain and who are returning for settlement after an absence of two years or less, need not obtain visas when returning to the UK within the currency of their visa. The Immigration (Leave to Enter and Remain) Order 2000, made under section 3A of the Immigration Act 1971, provides that leave to enter may be given or refused

150

Anne Grimes and Fidelma O’Hagan

before the person leaves for or arrives in the UK. In most cases, entry clearance obtained at a visa application centre abroad will operate as advance leave to enter. Another form of immigration control imposed by law is contained in the Immigration (Carriers’ Liability) Act 1987, as amended. This provides for carriers to be fined up to £2,000 for each passenger they bring to the UK who does not have the correct documentation, that is, a valid passport and visa. This means that employees of airlines, shipping companies, railways and hauliers act as unofficial immigration officials. The provision has particularly affected refugees who wish to come to the UK to seek asylum. Often they are unable to obtain passports from their own governments and checks by airline staff effectively prevent many refugees from reaching the UK, where they could claim asylum. Because of the numbers of people entering the UK illegally, concealed in freight vehicles and trains, a penalty scheme was introduced and is currently incorporated in the Nationality, Immigration and Asylum Act 2002 (s 125 and Sch 8).

Immigration Control at Time of Entry Immigration officers at the port of entry have the power to grant or refuse leave to enter the UK. Those who are required to do so (see above) must produce evidence to the immigration officer that prior entry clearance has been issued. Leave to enter normally takes the form of a stamp endorsed on the person’s passport and may be limited in time and have all or any of the following conditions attached to it: — a prohibition or restriction on employment; — a condition requiring the person to maintain and accommodate him- or herself and any dependents without recourse to ‘public funds’ (see below); and — a requirement to register with the police. Refusal of leave to enter will normally be endorsed on the passport. This will indicate to immigration officials dealing with subsequent applications that the applicant has previously had an application refused. Special rules apply to those who enter the UK through the Republic of Ireland. These are contained in the Immigration (Control of Entry through Republic of Ireland) Order 1972, which provides that certain people travelling to the UK from Ireland are automatically given leave to enter for three months with a prohibition on employment. As there are no immigration officials at the border, this will not be stamped on their passports but if they wish to stay longer they must apply to the UKVI for an extension of their leave to remain. This does not apply to visa nationals (see above) or to people who have previously entered or remained in the UK who must obtain leave to enter the country. Other than visa nationals, people who leave the UK for Ireland whilst having limited leave to remain in the UK and

Immigration

151

whose leave expires whilst in Ireland are automatically given leave to enter the UK for seven days upon their return.

Immigration Control After Entry After entry to the UK, limited leave to enter may be extended or varied by the Secretary of State. In practice, the power is exercised by staff at the UKVI. Applications attract a fee and can be made by post to the address on the relevant application form. Alternatively, applicants may be able to access the ‘premium service’, which processes specific applications much more quickly. Only certain types of ‘straightforward’ applications can be processed in this way and these attract a higher fee. To arrange an appointment to lodge an application via the premium service applicants should contact the UKVI Public Enquiry Office (PEO) in Northern Ireland (see contact details at the end of this chapter). As with leave to enter, leave to remain may be of limited or indefinite duration and, if limited, may be subject to conditions. Applicants may apply for an extension of their leave to remain in the UK in the same category as their leave to enter was granted. They may also apply for a change of status, that is, it is sometimes possible to switch from one immigration category to another and to have time limits or other conditions changed. In certain circumstances applications may also be made for ‘settlement,’ that is, a removal of all time limits and conditions attached to the applicant’s leave. Applications for variation of leave should be made to the UKVI before the expiry of existing leave, otherwise the applicant becomes an ‘overstayer’ and can be liable to prosecution and removal from the UK. In such situations, moreover, there is a very limited right of appeal if the application is refused. Applications for leave to remain must be made on the mandatory application form and must include all documentation requested on the form and the fee. There is a different application form for each type of application and the forms are available on the UKVI website. A failure to complete the form properly or to include all documentation or non-payment of the fee without good reason will lead to the form being returned. The application must then be resubmitted and may be late, resulting in the applicant being treated as an overstayer with the consequence that he or she may be liable to prosecution, removal and the loss of the right of appeal. The UKVI will grant an application for variation of leave if the applicant satisfies all of the conditions for the particular category as set out in the Immigration Rules. The Secretary of State always has an overriding discretion to grant leave to remain outside the Rules, but in practice any request for the exercise of that discretion is dealt with by the UKVI. A grant of leave to remain is normally in the form of a stamp in the person’s passport. Refusal of leave to remain will also normally be endorsed on the passport.

152

Anne Grimes and Fidelma O’Hagan

Another form of immigration control is being introduced by the Immigration Act 2014 which prohibits private landlords from renting property to those who are subject to immigration control but are without leave to enter or remain in the UK and prohibits Banks and Building Societies from opening current accounts for those who are subject to immigration control but are without leave to enter or remain in the UK. The 2014 Act also introduced a requirement that those who apply for a driving licence are lawfully resident in the UK.

The Immigration Rules Full details of the conditions for entry into, and stay in, the UK are set out in the Immigration Rules and these should be consulted before any application is made. The Rules and UKVI guidance on the application of the Rules can be found on the UKVI website. The Rules set out conditions which apply depending on whether the person comes to the UK for temporary purposes, to work, to join members of his or her family, to seek asylum or for other purposes. The Immigration Rules also set out mandatory and discretionary grounds for refusal. These grounds relate primarily to past immigration conduct, criminal offences, lack of proper documents, non-cooperation with the immigration authorities, restricted returnability, public policy or public health. The Rules set out a clear period of either one, five or 10 years during which a previous immigration offender will have any future applications to come to the UK refused. For example, applicants who have been refused entry clearance after having used deception in their applications will have any future applications they make refused for 10 years. As mentioned above (page 149), persons who are visa nationals require entry clearance from abroad to enter the UK in any capacity. Non-visa nationals do not normally need to apply for entry clearance to come to the UK for less than six months and can obtain leave to enter from an immigration officer upon arrival. However, if they have entry clearance and are refused leave to enter at the UK port, they have had an in-country right of appeal against a refusal of leave to enter, however the changes introduced by the Immigration Act 2014 will restrict this right of appeal. It has become increasingly difficult to switch from a temporary category of less than six months to any other immigration category under the Immigration Rules. It will now be permitted only in very limited circumstances.

Visitors The category of ‘visitors’ has been extended to include different types of visitors who can apply to come and stay in the UK. A person granted permission to enter the UK as a visitor will normally be granted a maximum stay of six months but there are some exceptions. All visitors must intend to leave the UK at the end of

Immigration

153

their visit. The various types of visitors are: general visitors; child visitors; business visitors; sports visitors; entertainer visitors; visitors in transit, who can only stay for a maximum of 48 hours; visitors accessing private medical treatment; visitors in the form of a parent of a child at school, who can stay for a maximum of 12 months; marriage and civil partnership visitors, who can come to the UK for a maximum of six months solely for the purposes of entering into a marriage or civil partnership after which they must leave the UK; student visitors; and ‘family’ visitors coming to the UK for the purpose of visiting a ‘family member’, as defined under the Immigration Rules. Note that, unlike other visitors, family visitors in this category have had a limited right of appeal on human rights or race discrimination grounds if their application is refused. This right of appeal also will be further restricted by the Immigration Act 2014. Every applicant in the visitor category must be able to support and accommodate him- or herself without working or claiming public funds. A public fund is defined in the Immigration Rules as: — housing, under Part VI or VII of the Housing Act 1996, Part II of the Housing Act 1985, Part I or II of the Housing (Scotland) Act 1987, Part II of the Housing (NI) Order 1981 or Part II of the Housing (NI) Order 1988; — attendance allowance, severe disablement allowance, carer’s allowance and disability living allowance, under Part III of the Social Security Contribution and Benefits Act 1992; income support, council tax benefit and housing benefit, under Part VII of that Act; a social fund payment under Part VIII of that Act; child benefit under Part IX of that Act; income-based jobseeker’s allowance under the Jobseekers Act 1995; income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance); state pension credit under the State Pension Credit Act 2002; or child tax credit and working tax credit under Part 1 of the Tax Credits Act 2002; — attendance allowance, severe disablement allowance, carer’s allowance and disability living allowance under Part III of the Social Security Contribution and Benefits (NI) Act 1992; income support, council tax benefit and housing benefit, under Part VII of that Act; a social fund payment under Part VIII of that Act; child benefit under Part IX of that Act; income-based jobseeker’s allowance under the Jobseekers (NI) Order 1995 or income-related allowance under Part 1 of the Welfare Reform Act (NI) 2007; — universal credit under Part 1 of the Welfare Reform Act 2012 or personal independence payment under Part 4 of that Act; — universal credit, personal independence payment or any domestic rate relief under the Northern Ireland Welfare Reform Act (NI) 2013; — a council tax reduction under a council tax reduction scheme made under section 13A of the Local Government Finance Act 1992 in relation to England or Wales or a council tax reduction pursuant to the Council Tax Reduction (Scotland) Regulations 2012 or the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012.

154

Anne Grimes and Fidelma O’Hagan

However, there are some benefits which do not come within the above definition of ‘public funds’. These include contribution-based job seeker’s allowance, guardian’s allowance, incapacity benefit, contribution-related employment support allowance (ESA(C)), maternity allowance, retirement pension, statutory maternity pay, widow’s benefit and bereavement benefit.

Points-Based System The Points-Based System (PBS) in the Immigration Rules has created five distinct tiers under which an applicant can apply to enter or remain in the UK for the purposes of paid or unpaid work and study. A person applying for leave to enter or remain in the UK under the PBS must be able to show that he or she can achieve the minimum number of points required for the specific PBS category under which they have applied. Depending on which category it is, a person will obtain points-based on his or her educational qualifications, previous earnings, age, nationality and experience in the UK. Applicants must also be able to demonstrate that they have a specified amount of funds available and can maintain and accommodate themselves and any dependents without recourse to public funds. All these requirements are very strictly applied and UKVI has on its website a ‘points-based calculator’ which enables applicants to calculate how many points they have accrued. The different tiers are as follows: — Tier 1: Applicants under Tier 1 do not need to be sponsored by an employer or educational establishment in the UK. They are broken down as Tier 1 (Exceptional Talent) for exceptionally talented individuals in the fields of science, humanities, engineering and the arts, who wish to work in the UK; Tier 1 (General) for highly skilled migrants; Tier 1 (Investor Migrants) for persons seeking to make a substantial financial investment in the UK; Tier 1 (Entrepreneur Migrants) for persons who intend to join, establish or take over a business in the UK; and Tier 1 (Graduate Entrepreneur) for overseas students who have completed a degree in the UK and want to carry out skilled or highly skilled work in the UK. — Tier 2: Applicants coming to the UK under Tier 2 require a ‘sponsor’ in the form of an employer and must be able to demonstrate, amongst other things, that the job they are applying for cannot be filled from the resident labour market within the UK or the EEA. Tier 2 is made up of Tier 2 (General), who are skilled workers from outside the EEA; Tier 2 (Ministers of Religion); Tier 2 (Sports); and Tier 2 (Intra-Company Transfer). — Tier 3: This tier has been suspended. — Tier 4: Those applying under Tier 4 require a sponsor in the form of an educational establishment. This tier is for students wanting to come to, or remain in the UK for the purpose of full-time study. It is broken down into Tier 4 (General) and Tier 4 (Child).

Immigration

155

— Tier 5: All applicants under Tier 5 require a sponsor. It has two categories. Tier 5 (Youth Mobility Scheme) which is primarily a route for young people wanting to come to the UK on a temporary basis, for non-economic reasons, in order to experience life in the UK. They will have permission to do some work while they are here. Tier 5 (Temporary Workers) covers those wanting to come to the UK for the following reasons: cultural, charitable, religious or to satisfy international objectives including volunteering and job shadowing.

Family Members In July 2012 the Immigration Rules relating to the entry into and stay in the UK of family members were significantly changed in terms of the requirements to be met and evidence which must be satisfied. The revised section of the Rules is called ‘Appendix FM’ and it generally applies to all new applications lodged after 12 July 2012. However, there are Transitional Provisions in paragraphs A277–A280E of the Rules. A person will remain subject to the Immigration Rules relating to family members which were in force up to 8 July 2012, as set out in Part 8 of the Rules, as long as they satisfy the following criteria: — the application was lodged prior to 9 July 2012 but not decided by that date; or — the applicant was granted entry clearance or leave to remain in the UK as a family member before 9 July 2012 and that leave to remain is still extant. These transitional provisions will apply up to the point where the applicant obtains indefinite leave to remain. Notwithstanding the above, children applying for indefinite leave to enter or remain in the UK as the child of a parent or relative present and settled or being admitted for settlement into the UK will still do so under Part 8 of the Immigration Rules. They will be eligible to do so as long as they can provide evidence that they can and will be accommodated without recourse to public funds, and that, if relevant, the parent in the UK has had sole responsibility for that child or there is ‘serious and compelling’ evidence or other considerations which make exclusion undesirable. Other than the above categories of applicants, the Immigration Rules which came into effect on 9 July 2012 apply to all new applications for leave to enter or leave to remain in the UK. The relevant rules are set out in Appendix FM.

Partners A partner (defined in GEN 1.2 as a spouse, civil partner, fiancé(e) or proposed civil partner, or a person living in a relationship akin to marriage for at least

156

Anne Grimes and Fidelma O’Hagan

two years) of a British citizen, or of someone settled here, can apply for leave to enter the UK for an initial period of 33 months. Both parties to the marriage or civil partnership must be over 18 years of age at the date of the application, they must have met and be lawfully married or in a civil partnership and intend to live together permanently. The relationship must be genuine and subsisting. The applicant must be able to demonstrate that he or she has sufficient knowledge of the English language and of life in the UK. The couple must be able to support and accommodate themselves without recourse to additional public funds and be able to demonstrate that the sponsor in the UK has a minimum gross income of £18,600, with an additional £3,800 for the first child and £2,400 for each additional child sponsored. The Rules set out the level of savings that is required if the income does not meet £18,600. ‘Appendix FM-SE Family Members—Specified Evidence’ sets out the specific evidence which applicants need to provide to the Embassy, High Commission or Home Office in order to demonstrate that they satisfy the strict requirements. A sponsor is exempt from meeting the financial requirement where he or she is in receipt of a disability-related benefit. Once in the UK in this category, the applicant will be entitled to work but will be restricted from accessing public funds. After 30 months’ residence in the UK in this category, the applicant can apply to extend the status for a further 30 months. For this application the applicant must not have debts owing to the NHS of £1,000 or more and any income earned by the applicant can be taken into account alongside that of the sponsor when calculating the £18,600 income. After residing in the UK as a partner for a total of five years he or she can apply for indefinite leave to remain. A fiancé(e) or proposed civil partner will initially be allowed to enter the UK for six months, during which period there will be a prohibition on employment and on accessing public funds and the couple should marry or enter into a civil partnership within the six-month period. Once married or in a civil partnership they should then apply for leave to remain as a spouse or civil partner. Appendix FM introduced a new category into the Immigration Rules which purports to enshrine the principles of family life contained in Article 8 of the European Convention on Human Rights (ECHR) (see below). Therefore, an applicant can apply to remain in the UK despite having no extant leave to remain if the applicant can demonstrate that he or she has a ‘genuine and subsisting’ relationship with a partner who is in the UK and is a British citizen or settled or has refugee status or humanitarian protection and there are ‘insurmountable obstacles to that family life continuing outside the UK’.

Victims of Domestic Violence If the marriage or civil partnership breaks down during the 30- or 33-month period as a result of domestic violence, a spouse or partner can apply for indefinite leave to remain if he or she can provide evidence demonstrating that the

Immigration

157

cause of the relationship breakdown was domestic violence and if the applicant can satisfy the ‘suitability’ criteria. These criteria refer to criminal convictions, any outstanding debts owing to the NHS, any false representations lodged with the application and a failure to disclose material facts. A person applying under these provisions may not have to pay the fee if he or she can demonstrate destitution.

Bereaved Partners Where a person who is in the UK in a ‘partner’ category, other than as a proposed civil partner or fiancé(e), and the settled or British citizen partner dies, the bereaved spouse or partner is eligible to apply for indefinite leave to remain as long as the relationship was at the time of the partner’s death ‘genuine and subsisting’, each of the parties was intending to live together permanently in the UK, and the applicant can satisfy the ‘suitability’ criteria (see above).

Parents A parent can apply to enter or remain in the UK if his or her child is living in the UK and is settled or a British citizen. The applicant must be able to demonstrate that he or she has sole responsibility or access rights to the child, that he or she will be able to adequately maintain and accommodate him- or herself without recourse to public funds, and that he or she has sufficient knowledge of the English language. Leave will be granted for an initial period of 33 months if applying to enter the UK in this category, or 30 months if already lawfully in the UK for a period in excess of six months. The period can be extended for up to 120 months and after being in this category for 10 years, the person may be eligible to apply for settlement. Appendix FM amended the Immigration Rules to deal specifically with the principles of family life contained in Article 8 of the ECHR (see below). An applicant, other than a visitor or a person with leave to remain for a period of less than six months (except as a fiancé(e) or proposed civil partner), may apply to remain in the UK despite having no extant leave to remain if she or he can demonstrate that she or he has a ‘genuine and subsisting’ parental relationship with a child who is in the UK and who is either a British citizen or has resided in the UK continuously for seven years and it would be unreasonable to expect the child to leave the UK.

Children of Parents with Limited Leave to Remain as a Partner or Parent Children under 18 years of age who are unmarried and whose parent is seeking leave to enter or has leave to remain as a ‘partner’ or parent relating to another

158

Anne Grimes and Fidelma O’Hagan

child, can apply to enter or remain in the UK if they can satisfy the financial requirements set out in Appendix FM (as above). The rule prohibiting the claiming of public funds applies. Leave to remain will be granted in line with that of the child’s parent.

Parents and Grandparents, Adult Sisters/Brothers/Sons/Daughters Under the Immigration Rules, certain adult dependent relatives can apply to enter the UK to reside with their family members who are either British citizens, settled in the UK or have refugee status or humanitarian protection in the UK. They must demonstrate that they can be adequately maintained, accommodated and cared for without recourse to public funds and that, as a result of age, illness or disability, they require long-term personal care to perform everyday tasks. They must also be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, either because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable. After five years in this category, they will be eligible to apply for indefinite leave to remain.

Refugees, Asylum and Subsidiary Protection Asylum is granted to those who can show that they have a well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion and that they are therefore unwilling or unable to return home. This definition is set out in the 1951 UN Convention on the Status of Refugees and its 1967 Protocol, both of which the UK has ratified. In addition, Council Directive 2004/83/EC, known as the ‘Qualification Directive’, came into force in 2006. Its purpose is to set minimum standards as between countries in the EU when dealing with asylum applications. Applications for asylum are made to the immigration officer at the port of entry or, after entry, to the UKVI if the refugee has come into the country in another capacity (such as a visitor or student) or has entered clandestinely. In general, anyone who applies for asylum is entitled to have his or her claim considered by the UKVI and to remain in the UK pending a decision. However, people who come to the UK through a ‘safe’ third country may be refused asylum without their claim being considered in the UK, and returned to that third country. On 19 July 2013 the EU’s Regulation No 604/2013, or ‘Dublin III’, came into force, bringing in the Common European Asylum System. This sets out the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person. Usually, the responsible Member

Immigration

159

State will be the State through which the asylum seeker first entered the EU. The identification of the responsible Member State is facilitated by the EURODAC system, which is a Europe-wide fingerprinting database for asylum seekers and those considered to be undocumented in European countries. Those who apply for asylum on entry may be detained or given temporary admission. Whilst an application is pending an applicant may apply for limited permission to work if waiting for more than one year. If they are destitute, applicants may also be entitled to support via the National Asylum Support Service (NASS) while they are awaiting the outcome of their application or of any appeal. NASS is operated via a One Stop Service. In Northern Ireland this is currently run by Bryson One Stop Service for Asylum & Refugee Advice & Support (see contact details at the end of the chapter). This service became the responsibility of Migrant Help in April 2014. If the UKVI grants asylum, the refugee is granted a residence permit giving permission to stay in the UK for an initial period of five years, and his or her dependents in the UK are given the same permission. The refugee’s spouse and children under 18, if they are abroad, can apply to join the refugee, but different rules apply depending on whether the marriage was entered into before or after the refugee fled his or her country of origin. If the marriage took place after the refugee fled, the applicant’s spouse and children must be able to demonstrate that, if granted entry to the UK, there will be sufficient accommodation and resources without additional recourse to public funds. If the marriage pre-dates the refugee fleeing, the issue of additional recourse to public funds is not relevant to the application. Many applications for asylum are refused on the basis that the person’s account is not believed by the Secretary of State, therefore appeals usually concentrate on establishing credibility, which can obviously be difficult in the absence of supporting evidence. If an application is refused, the Secretary of State issues a ‘Reasons for Refusal Letter’ with full reasons for the refusal. The asylum-seeker has a right of appeal against that decision to the Tribunal (see below).

Human Rights Some people who do not qualify for asylum may nevertheless be granted humanitarian protection or discretionary leave to remain in the UK if they can satisfy certain requirements.

Articles 2 and 3 of the ECHR If applicants do not qualify for asylum but can establish that they face a real risk of suffering serious harm if returned to their home country in the form of execution, unlawful killing, torture or inhuman or degrading treatment or punishment,

160

Anne Grimes and Fidelma O’Hagan

or serious and individual threat to their life by reason of indiscriminate violence in situations of international or internal armed conflict, they may qualify for humanitarian protection. Applicants who claim a fear of return to their country of origin on these grounds will almost always have made an application for asylum and therefore all details of why they are unable to return home will be given to the UKVI during the asylum process, on completion of the relevant forms and interviews at the UKVI’s Belfast office. The applicant will be granted temporary admission during that process and will be entitled to remain in the UK while his or her application is being considered. An applicant for humanitarian protection may be eligible for assistance under the NASS scheme (page 159 above). If a person is granted permission to remain on the basis of humanitarian protection, he or she will be given humanitarian leave to remain for five years, after which they are entitled to apply for indefinite leave to remain in the UK.

Article 8 of the ECHR A person may be granted discretionary leave to remain in the UK if he or she can establish that their removal would be a breach of their right to a private or family life, contrary to Article 8 of the ECHR. Since July 2012 the starting point for consideration of applications for leave to remain under Article 8 is Appendix FM of the Immigration Rules. Where Appendix FM is not satisfied an application should be considered under Article 8 itself only where there are compelling reasons to do so (Gulshan (Article 8—new rules—correct approach), 2013). This is a developing area of law and the relationship between Appendix FM and Article 8 may soon be clarified by further case law. Every state has the right to control the entry of non-nationals into its territory and Article 8 of the ECHR does not impose a legal obligation on a state to respect the choice of country that, for example, a married couple might want to live in. When considering an application on this basis, along with all of the documentary evidence which must be lodged in support of it, there are certain questions which the decision-maker must ask him- or herself. This is the five-step approach as set out by Lord Bingham in R (Razgar) v Secretary of State for the Home Department (2004). First, the decision-maker must consider whether a private or family life exists and whether removal of the applicant from the UK would result in an interference with that private or family life. If the answer to both questions is ‘yes’, the next stage is to carry out a balancing exercise of those factors in favour of the applicant being allowed to stay in the UK and those against. The point is to determine whether removal is proportionate after weighing up all the factors involved in the application against the public interest. The UKVI should consider factors such as the length of time the applicant has resided in the UK, the number of family members in the UK and the extent of the applicant’s integration into UK society, including whether a student or worker has created sufficient social ties or relationships while in the UK: MM (Tier 1 RSW,

Immigration

161

Art 8: ‘Private Life’) Zimbabwe (2009) and CDS (PBS: ‘Available’, Art 8) Brazil (2010). In all cases the UKVI should also consider any medical issues, as well as whether it is reasonable to expect any immediate and close family members of the applicant to leave the UK and return with the applicant to his or her country of origin to reside there. All relevant documentary evidence to support these facts must therefore be lodged with the application. The UKVI will also take into consideration details of any criminal convictions of the applicant and other evidence of ‘bad’ character, for example, illegal entry into the UK or over-staying. If the applicant was granted discretionary leave before 9 July 2012, he or she will have been given three years leave to remain; this can be extended up to six years, after which the applicant can apply for indefinite leave to remain. If the grant of discretionary leave to remain was given after 9 July 2012, the applicant will normally have been given 30 months leave to remain; this can be extended up to 10 years, after which the applicant may apply for indefinite leave to remain in the UK. The Immigration Act 2014 introduces a statutory duty on judges to have regard to certain factors when assessing the public interest in an Article 8 appeal. These include the extent to which the appellant is able to speak English, the degree of financial independence of the appellant and whether a relationship was entered into in the knowledge that the appellant was in the UK unlawfully. It will be important to bear these provisions in mind when preparing to lodge an article 8 application.

Children Section 55 of the Borders, Citizenship and Immigration Act 2009 provides that, in discharging his or her functions in relation to, amongst other things, immigration, asylum or nationality, the Home Secretary must make arrangements for ensuring that those functions ‘are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom’. This provision, as well as the UN Convention on the Rights of the Child, were considered by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department (2011). The court considered that when dealing with issues affecting a child, including the deportation of a parent, the best interests of the child should be the ‘primary consideration’. This means that the well-being of the child must be considered first when making decisions concerning his or her Article 8 right to a private and family life in the context of the possible removal and deportation of the child and family members.

Victims of Trafficking The National Referral Mechanism (NRM) was implemented in the UK in 2009. The stated purpose of the NRM is to identify victims of trafficking. The procedure

162

Anne Grimes and Fidelma O’Hagan

is that a ‘First Responder’ identifies the potential victim of trafficking and refers that person to the ‘Competent Authority’. A First Responder can be the UKVI, the Police Service of Northern Ireland (PSNI), Migrant Help, Social Services, Barnardos or the NSPCC. The Competent Authority is either the UKVI for nonEU citizens or the UK Human Trafficking Centre (UKHTC) for EU citizens. Once a potential victim of trafficking has been referred to the Competent Authority, he or she should receive a ‘Reasonable Grounds Decision’ within five days, setting out whether there are grounds to suspect that he or she is a victim of trafficking. If the grounds find that he or she may be a victim, the person is given a 45-day ‘reflection and recovery’ period. During this period the person will have access to accommodation and specialist support services. After the reflection and recovery period, the Competent Authority should issue a ‘Conclusive Decision’ as to whether the person is a victim of trafficking. For a non-EU citizen if the decision is positive, and the individual has agreed to assist the police in the criminal prosecution of the alleged trafficker, then he or she should be granted 12-month discretionary leave to remain in the UK. This may be extended for a further period. If the non-EU citizen is not assisting the police for whatever reason, the Competent Authority may still decide to grant a period of discretionary leave to remain owing to the particular circumstances of the case. There is no right of appeal against a negative ‘reasonable grounds’ or ‘conclusive grounds’ decision, although the Competent Authority can be asked to review the decision or it can be challenged by way of judicial review (see Chapter 2).

European Nationals The Citizens Directive 2004/38/EC defines the rights of free movement for citizens of the European Economic Area (EEA) and for some of their family members. The EEA countries are the following: — Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK. (Switzerland is not in the EEA, but Swiss nationals have the same rights as EEA nationals.) The Citizens Directive was brought into force in the UK in 2006 in the form of the Immigration (EEA) Regulations 2006 (‘the EEA Regulations’). These have been amended a number of times, most significantly by the Immigration (EEA) (Amendment) Regulations 2012. An EEA citizen has a right of entry into the UK for three months, after which he or she may continue to have an EU law right to reside if they are: — a jobseeker;

Immigration

163

— — — — —

a worker; self-employed; self-sufficient; a student; a retired person who has continuously resided in the UK for at least three years and was employed in the UK for the preceding 12 months; or — a person who has ceased employment owing to a permanent incapacity for work and either the incapacity has arisen out of an accident at work or an occupational disease, or the person has been continuously resident in the UK for at least two years.

The Immigration (EEA) (Amendment) (No 2) Regulations 2013 introduced a new definition of a ‘jobseeker’ from 1 January 2014. A jobseeker must now be a person who entered the UK in order to seek employment or is present in the UK seeking employment immediately after enjoying a right to reside as a worker, selfemployed person, self-sufficient person or a student and can provide evidence that he or she is seeking employment and has a genuine chance of being engaged. A person may not retain the status of a worker or jobseeker for longer than six months unless the worker has previously worked for 12 months immediately before losing his or her job and can provide ‘compelling evidence’ that he or she is continuing to seek employment and has a genuine chance of being engaged. If the EEA citizen has an EU law right to reside in the UK, he or she also has an EU law right to have certain family members reside in the UK with him or her, whatever their nationality. Family members come within two categories: ‘immediate’ and ‘extended’.

Immediate Family Members For a student these are defined as a spouse or civil partner and dependent children. For all others in the list above they are defined as: — a spouse or civil partner; — the person’s descendants, or those of his or her spouse, who are under 21 or who are their dependents (eg children or grandchildren); or — the person’s dependent relatives, or those of his or her spouse or civil partner in the ascending line (eg parents and grandparents).

Extended Family Members These are defined as: — a person who is in a durable relationship with the EEA national; — a person who is related to the EEA national and on whom they are dependent or a member of his or her household;

164

Anne Grimes and Fidelma O’Hagan

— a person who is related to the EEA national or his or her spouse or civil partner and, on serious health grounds, strictly requires the personal care of the EEA national spouse or civil partner; or — a person who is a dependent relative of the EEA national and satisfies the conditions under the Immigration Rules for permission to indefinite leave to enter the UK. Many people born in Northern Ireland are dual Irish and British citizens. Previously, for the purpose of having their family members with them in the UK, a dual Irish/British national could have elected to be dealt with as an Irish national, and therefore as an EEA national. However, the decision of the Court of Justice of the EU (CJEU) in Case C-434/09 Shirley McCarthy v Secretary of State for the Home Department held that an Irish citizen resident in the UK, who had spent her whole life in the UK and had never previously resided in another EEA Member State, could not rely on the Citizens Directive to argue that her non-EEA husband had an EU law right to reside in the UK, as no actual free movement across Member States had occurred. However, the CJEU has also decided in a different case Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM), that non-EEA national parents of a child who is the citizen of the country they reside in, for example, a British citizen living in the UK, must be given an EU law right to reside, including permission to work, in order for that child to be able to fully realise his or her rights as a citizen of the EEA, notwithstanding the decision in McCarthy. This is irrespective of whether the parents are legally in the EEA country or not. The principles in Zambrano have been incorporated into the EEA Regulations (Regulation 15A), which now give a derivative right of residence to the primary carer (or to another child being cared for by the primary carer) of an EEA national under 18 residing in the UK who would otherwise have to leave the EU and therefore be unable to fully enjoy the rights of an EU citizen. Following the CJEU’s decision in Case C-370/90 R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department and the January 2014 amendments to the EEA Regulations, the spouse of a British citizen may be able to enter the UK under EU law if the couple are arriving in the UK from another EEA Member State where the British citizen had been working and they can demonstrate that the British citizen had ‘transferred the centre’ of his or her life to that other EEA state while residing there. Unlike under the Immigration Rules, in EU law a spouse or civil partner remains a ‘family member’ until the court dissolves the legal relationship, even if the couple live in separate households in the UK. Also, the family member may retain an EU law right of residence even after divorce or the dissolution of the civil partnership, provided certain circumstances apply: — the family member is widowed or a surviving partner of an EEA citizen andhas resided continuously in the UK for at least one year before the death and is him- or herself a worker or self-employed or self-sufficient person;

Immigration

165

— the family member is a student who is the direct descendant of an EEA citizen who has died or left the UK, or of the spouse or civil partner of an EEA citizen who has died or left the UK; — the family member is the primary carer or parent of a child in the previous situation; or — the family member is a worker or self-employed or self-sufficient person whose former spouse or civil partner was an EEA citizen who had an EU law right to reside in the UK at the date of termination of the marriage or civil partnership and the family member: — was in that relationship for at least three years and had resided in the UK for one year; — has custody of a child of the EEA citizen; — a court has ordered that this person must have access in the UK to a minor child of the relationship; or — the case entails ‘particularly difficult circumstances’, for example, domestic violence during the course of the marriage or civil partnership.

Before Entry into the UK An EEA citizen is not subject to immigration control as set out in the Immigration Rules and should therefore be granted entry to the UK upon production of a valid passport or national ID card unless he or she falls to be refused entry on grounds of public policy, public health or public security or the Secretary of State has in the previous 12 months issued the person with a decision that he or she has abused the EEA right to reside or committed fraud. Nothing will be endorsed in their passport or ID card. The non-EEA family member of an EEA national, if coming to the UK to settle, should apply for an EEA Family Permit at the visa application centre abroad. The permit will be valid for six months. Family members of EEA nationals who have an EU law right to enter the UK cannot be denied entry into the UK, as long as they can produce evidence that they are the family member of the EEA national who has an EU law right to reside. If the family member does not have this evidence when he or she arrives at the port of entry, he or she must be given a reasonable opportunity to obtain the evidence.

After Entry into the UK An EEA national with an EU law right to reside in the UK, and certain family members as set out above, are not subject to immigration control after entry. If an EEA national and their immediate family members satisfy the relevant requirements, they automatically have an EU law right to reside in the UK and do not require permission or documentation from the UKVI to remain in the UK. This is

166

Anne Grimes and Fidelma O’Hagan

by virtue of the EU law principle of direct effect. However, they may want to apply for documentation from the UKVI as evidence of this right. An EEA national can apply for a residence card and a non-EEA national can apply for a registration certificate but such applications attract a fee. Under the EEA Regulations, extended family members consist of a number of different categories of relatives (see page 163 above). Extended family members do not benefit from the principle of direct effect and therefore they do not have an automatic right to reside in the UK under EU law. They should apply to the UKVI for the relevant documentation. If successful, the applicant will then be recognised as an ‘immediate’ family member with all the EU law rights which that status entails. It is therefore very important that the application is made to the UKVI. The application is a discretionary multi-stage process (YB (EEA Reg 17(4)— Proper Approach) Ivory Coast (2008). The UKVI must first decide whether the applicant comes within one of the extended family member categories and, if so, whether discretion should be exercised in the applicant’s favour and documents issued.

Permanent Residence After residing in the UK under EU law for five years, EEA nationals in the following categories, and their EEA and non-EEA family members, may be eligible for permanent residence: — — — —

a worker or seeker of work; a self-employed person; a self-sufficient person; or a student.

Residence in the UK as a result of a derivative right of residence does not constitute residence for the purpose acquiring permanent residence. The following EEA nationals may be eligible for permanent residence in the UK, along with their EEA and non-EEA family members, as soon as they satisfy the following conditions: — a retired person who has continuously resided in the UK for at least three years and was employed in the UK for the preceding 12 months; and — a person who has ceased employment owing to a permanent incapacity for work and either this incapacity has arisen out of an accident at work or an occupational disease, or he or she has been continuously resident in the UK for at least two years. A decision refusing to issue, renew or revoke an EU residence document can be taken on only three grounds: — for reasons of public policy, public security or public health; — that the person does not have an EU law right to reside in the UK; or — that the Secretary of State decides that the applicant has abused his or her EEA right to reside and it is proportionate to do renew the right.

Immigration

167

Where an EEA national has a permanent right of residence under EU law, removal of that person or a decision to refuse to renew an EU residence document must be based on ‘serious’ grounds of public policy or public security. Where an EEA national has had an EU law right to reside in the UK for a continuous period of 10 years, the UKVI’s reasons must be on ‘imperative grounds of public security’. These thresholds also apply to people threatened with deportation (see page 169 below).

Settlement and Citizenship Settlement The terms ‘settled’, ‘permanent residence’ and ‘indefinite leave to remain’ (ILR) are used interchangeably. They mean that the holder of that status is ordinarily resident in the UK without being subject under the immigration laws to any restriction on the conditions and period of stay. Under the Immigration Rules, certain categories of immigration status never in themselves lead directly to settlement, for example, visitors and students. In these cases the person is expected to leave at the end of the period of leave granted and they cannot generally switch into a category which qualifies for settlement. But in other categories, upon application for admission into or stay in the UK the person may be admitted for a limited period with a view to eventual settlement. Under transitional provisions spouses, civil partners and unmarried partners are generally given a 24- or 27-month initial period before qualifying for settlement. Under Appendix FM, applicants in these same categories are generally given 30 or 33 months’ leave to remain in or entry into the UK and, after successfully extending this for up to 10 years, they will be eligible to apply for settlement. Settlement is normally granted where the applicant has resided in the UK for a specified period of time, in one of the categories set out in the Immigration Rules. For example, people within Tiers 1 and 2 of the points-based system (see page 154 above) may qualify for settlement after five years’ continuous lawful residence in the UK. Settlement may also be granted under the Immigration Rules to persons who have lived in the UK for a continuous period of 10 years if they are in the country lawfully, or after 20 years if any part of that period has been unlawful. Refugees or those with humanitarian protection are normally granted leave to remain for a period of five years after which they may apply for settlement.

Returning Residents A person with indefinite leave to remain in the UK will generally be allowed back for settlement if he or she returns within two years of leaving. People with limited

168

Anne Grimes and Fidelma O’Hagan

leave to remain in the UK of at least six months will generally be allowed back into the UK during the currency of that visa after an absence abroad, subject to the same time limits and conditions.

Nationality As already mentioned, the British Nationality Act 1981 abolished citizenship by birth in the UK. Children born in the UK after 1 January 1983 will automatically be British citizens only if, at the time of their birth, one of their parents is a British citizen, is settled in the UK, or is a member of the armed forces. Where a child is born outside the UK, the British Nationality Act 1981 provides for automatic transmission of citizenship from parent to child for just one generation. Other people may become British citizens by registration or naturalisation. Registration applies to some minors and other types of British nationals. The Secretary of State retains a discretion to waive conditions which have not been met. At present an applicant resident in the UK as a spouse or civil partner of a British citizen may apply for naturalisation after three years, and for others the period of required residence is five years. In both cases the applicant must have indefinite leave to remain before being eligible to apply and there are strict rules governing periods of absence from the UK during the period of residence, that is, no more than 270 days in the case of spouses or civil partners and 450 days in the case of others. It is now necessary for all applicants to have sufficient knowledge of the English, Welsh or Scottish Gaelic language and sufficient knowledge about life in the UK, unless it would be unreasonable to expect the applicant to fulfil either requirement because of age or physical or mental condition. The applicant must also not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (NI) Order 1978. Successful applicants now take an oath or affirmation of allegiance and pledge loyalty to the UK and democracy at a citizenship ceremony.

Enforcement of Immigration Law There are a number of ways in which immigration laws are enforced. People may leave the UK voluntarily or with the assistance of the UKVI under the Assisted Voluntary Return scheme. People may be removed or deported from the UK and they may also be detained at various stages of the process. In Northern Ireland enforcement is carried out by the Home Office based at the Drumkeen Complex in Upper Galwally, Belfast.

Immigration

169

Removal — The main difference between removal and deportation is that there is no formal ban on re-entry when a person has been removed, although a person who has been previously removed from the UK may be subject to the mandatory or discretionary grounds for refusal set out in paragraphs A320–324 of the Immigration Rules. The Immigration Act 2104 has created a new provision whereby a person who requires leave to enter or remain in the UK but does not have it, can now be removed. This will cover: illegal entrants, that is, people who entered the UK illegally by avoiding immigration control or by obtaining leave to enter by deception; — overstayers, that is, people whose leave to enter or remain has expired; — people who have been refused leave to enter at the port of entry to the UK. The new provisions also allow for the removal of certain family members of the primary person facing removal who are not British citizens or persons with an EU law right to reside in the UK. As part of the new removals regime, the 2014 Act provides a 28-day period secure from removal where a child is to be removed and a parent or person with care of the child or in the child’s household is to be removed which would result in the child having no carer in the UK. The 28 days begins to run after any appeal rights are exhausted.

Deportation Deportation is the process whereby a non-British citizen can be compulsorily removed from the UK and prevented from returning unless the deportation order is revoked. The position differs depending on whether the person being deported is an Irish citizen, an EEA national or some other national. Following a ministerial statement on 19 February 2007, the only criteria under which an Irish national may be considered for deportation are where: — a court has recommended deportation when sentencing the person; or — the Secretary of State concludes that, due to the exceptional circumstances of the case, the public interest requires deportation, for example, where an offence committed involves national security matters or poses a serious risk to the safety of the public. An EEA national can be deported only on grounds of public policy, public security or public health or where the Secretary of State takes a decision that a person has abused his or her EEA rights and deportation is a proportionate response. Where an EEA national has acquired a permanent right of residence under EU law he or she can be deported only on ‘serious’ grounds of public policy or public security. Where an EEA national has had an EU law right to reside for a continuous period

170

Anne Grimes and Fidelma O’Hagan

of 10 years in the UK or is under 18 he or she can be removed only on ‘imperative grounds of public security’. Any other person who is not a British citizen, and not exempt, is liable to deportation from the UK in the following circumstances: — following conviction for a criminal offence attracting at least one single sentence of imprisonment of 12 months or more; — where the Secretary of State deems the deportation to be conducive to the public good; — where another member of the family to which the person in question belongs is to be deported; or — where a court recommends deportation in the case of a person over the age of 17 after conviction of an offence punishable by imprisonment.

Automatic Deportation The UK Borders Act 2007 introduced automatic deportation in response to publicity about foreign prisoners being released after serving their sentences without then being considered for deportation. There is now a statutory presumption that an automatic deportation is conducive to the public good. Two categories of foreign national prisoners are subject to the automatic deportation provisions: — those sentenced to a period of at least 12 months’ custody; and — those sentenced to a period of imprisonment following conviction for serious criminal offences as specified by order of the Secretary of State. There are some exceptions to automatic deportation, but deportation may still then be initiated where, for instance, deportation is conducive to the public good. The exceptions are where: — removal would breach the UN Convention on the Status of Refugees or the ECHR; — removal would breach EU law; — the criminal was under the age of 18 on the date of conviction; — the criminal is subject to extradition proceedings; or — the criminal is subject to certain specified provisions of mental health legislation.

The Deportation Process First, a decision to deport is issued. This carries a right of appeal. However the Immigration Act 2014 allows the Secretary of State to certify, before the appeals process is exhausted, a claim made by certain deportees which is based on human

Immigration

171

rights grounds where she is satisfied that the appellant would not face a real risk of serious irreversible harm if removed. The effect of certification is to enable the removal of the appellant from the UK before the appeal process is exhausted. The second stage of the deportation process is the issuing of a deportation order. There is no further right of appeal against such an order, except by way of an objection to removal to the destination named on the order. Once an order is made it remains in force until it is revoked by a further order of the Secretary of State, which does not normally occur for at least 10 years. Until it is revoked the person subject to the order may not return to the UK. In certain circumstances the UKVI may also deport the person’s spouse and children who are under 18.

Detention The Home Office may detain people: — — — — —

who have entered the UK illegally; where their application for leave to enter is under consideration; against whom a decision to deport has been made; who are awaiting removal from the UK; or who have been charged with an immigration offence.

In 2011 the first dedicated immigration holding centre was opened in Northern Ireland, Larne House in Larne. It houses adults and accommodates a maximum of 21 detainees for a period of up to seven days. Beyond that period, or if the holding centre is full, detainees may be held in Immigration Removal Centres in Scotland or elsewhere in the UK. Detainees can apply for bail to the immigration authorities or the First-tier Tribunal. Under the Immigration Act 2014 a bail applicant who is to be removed within 14 days cannot be released on bail without the consent of the Secretary of State. Further, the Immigration Act 2014 Act provides for bail applications made within 28 days of the previous unsuccessful bail hearing to be automatically refused without a hearing unless the First-tier Tribunal can be persuaded that there has a been a material change in the applicant’s circumstances.

Criminal Offences There are a significant number of criminal offences which relate directly to immigration, for example, overstaying, breaking conditions of leave, using deception or false documents on arrival, or obtaining leave to remain by deception. Suspected offenders can be arrested by immigration officers or the police. If convicted they can be fined, imprisoned and recommended for deportation. There can be implications for future applications for entry clearance or leave to enter or remain.

172

Anne Grimes and Fidelma O’Hagan

Challenging Decisions On 15 February 2010, Immigration and Asylum Chambers were established in both tiers of the Unified Tribunals framework created by the Tribunals, Courts and Enforcement Act 2007. The new chambers replace the former Asylum and Immigration Tribunal. Any appeal involving issues of national security is heard by the Special Immigration Appeals Commission (SIAC). Legal Aid is available for representation before the First-tier Tribunal, the Upper Tribunal and the SIAC. The Law Centre (NI) receives funding from the Northern Ireland Legal Services Commission to provide advice and representation at appeal hearings.

The First-tier Tribunal (Immigration and Asylum Chamber) The First-tier Tribunal (Immigration and Asylum Chamber) (FTT (IAC)) deals with appeals against decisions made by the Home Secretary and his or her officials in immigration, asylum and nationality matters. Appeals may be made against refusal of entry clearance, refusal of leave to enter, refusal of leave to remain, refusal of asylum, deportation and removal. There are some exceptions and limitations on the right to appeal, for example, visa nationals may not appeal against refusal of leave to enter unless they have prior entry clearance. Where there is to be an oral hearing, appeals are heard by one or more Immigration Judges who are sometimes accompanied by non-legal members in hearing centres across the UK. In Northern Ireland appeals are administered in Glasgow but the First-tier Tribunal sits in courts supplied by the Northern Ireland Courts and Tribunals Service, at present in Laganside Courts in Oxford Street, Belfast.

The Upper Tribunal (Immigration and Asylum Chamber) A further appeal lies to the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC). Either party may appeal and must first apply for permission to appeal. Applications for permission are considered on the papers. Permission may be granted if it is shown that there is an arguable error of law. If permission is granted there is then an oral hearing before the Upper Tribunal. The appeal will be heard by one or more Senior or Designated Immigration Judges or Deputy Judges. The Upper Tribunal considers whether the First-tier Tribunal made an error on a point of law. If it decides that there was an error of law the Upper Tribunal can substitute its own decision in place of it, or order the First-tier Tribunal to rehear the initial appeal.

Immigration

173

There are a number of ways in which immigration decisions can be challenged, depending on when the appeal is made and on what grounds. Information will be provided with the notice of decision setting out what right of appeal the applicant might have whether she/he can remain in the UK while the appeal is pending and how to complete and lodge the relevant appeal forms. The Immigration and Asylum Act 1999 introduced a one-stop appeals procedure, which means that where there is a right of appeal appellants have only one opportunity to appeal and must raise all reasons for wishing to stay in the UK at the same appeal hearing. The Nationality, Immigration and Asylum Act 2002 restructured the appeals system to simplify and streamline the one-stop provisions. The current immigration appeal system is such that many decisions attract a right of appeal before, on and after entry into the UK. The person has the right to appeal against a refusal in specific circumstances: — refusal of entry clearance — where the application for variation or extension was made whilst the applicant still had leave to remain in the UK, that is, before the expiry of the date on the last stamp in his or her passport, and was received by the UKVI on the correct form with all required documents before the expiry of the person’s current leave to enter or remain; — where the refusal is not a mandatory refusal; — on asylum or human rights grounds; — on race discrimination grounds; or — in respect of an EEA decision (see pages 162–167 above). Currently, where there is a right of appeal based on one or more of the above, the grounds for appeal to the First-tier Tribunal must be based on one or more of the following grounds: — that the decision was wrong in law; — that the decision was not in accordance with the Immigration Rules or involved an exercise of discretion which should have been exercised differently; — that the decision is discriminatory under the Race Relations Act 1976; — that removal from the UK as a result of this decision would breach the applicant’s human rights or the UK’s obligations to refugees; or — that the decision breaches treaty rights in respect of an EEA national or dependent. The Immigration Act 2104 introduces significant changes to the process of challenging decisions in immigration law. The Immigration Act 2014 restructures the appeal process and narrows rights of appeal to the Tribunal. When these provisions come into effect a right of appeal will be provided against: 1) refusal of a human rights claim, 2) refusal of a protection claim (humanitarian protection and asylum), and 3) revocation of refugee or humanitarian protection status.

174

Anne Grimes and Fidelma O’Hagan

It will also continue to be possible to bring an appeal, as is currently the case, against a decision to refuse an application based on a right under EEA law. The Immigration Act 2014 also introduces a system of internal Administrative Review for specific types of unsuccessful immigration applications. The types of applications which will fall to be reviewed within this process will be contained in a list within the Immigration Rules. Under the Immigration Act 2014 an appeal must be brought from outside the UK, that is after departure or removal from the UK, where it has been certified as clearly unfounded or where an asylum seeker is to be removed to a safe third country. The Immigration Act 2014 also enables the Secretary of State to certify a human rights based appeal against deportation where it is considered that the appellant would not ‘before the appeals process is exhausted, face a real risk of serious irreversible harm’ if removed to the proposed country. The EFA Regulations have also been amended to incorporate this provision. Certificates can be challenged via judicial review (see below). The Immigration Act 2014 also introduced a list of considerations to which courts or tribunals must have regard in considering the public interest in Article 8 cases. At the time of writing these provisions were very new and it remains to be seen how they will operate in practice.

The Court of Appeal In certain circumstances, either party to the appeal may challenge the decision of the Upper Tribunal by way of an appeal to the Court of Appeal. Permission must be obtained from the Upper Tribunal or the Court of Appeal and may be granted where either body considers that the proposed appeal would raise some important point of principle or practice or that there is some other compelling reason why the appeal should be heard. In PR (Sri Lanka) v Secretary of State for the Home Department (2011) the Court of Appeal emphasised that permission to appeal to the Court of Appeal should be granted only where the point of principle or practice is not only important but is one which calls for attention by the higher courts rather than left to be determined within the specialist tribunal system.

Judicial Review Judicial review (see also Chapter 2) is available in relation to decisions of entry clearance officers, immigration officers, the Secretary of State or appellate bodies, if such decisions are illegal or unreasonable. It is normally necessary to exhaust all immigration appeals first, unless a decision has been ‘certified’ by the Secretary of State for the Home Department, in which case judicial review is the only remedy. The EEA Regulations which came into effect in January 2014 now empower the Secretary of State to certify EEA decisions where national security issues arise and

Immigration

175

in these cases judicial review will be the only available remedy. Judicial review may also be available to challenge the validity of removal directions certificates or where there is no right of appeal. A negative ‘reasonable grounds’ or ‘conclusive decision’ made under the NRM for suspected victims of trafficking (see page 162 above) can also only be challenged by way of judicial review.

Representations by Elected Politicians Due to the limitations of the appeal procedures and judicial review, further representations to the Secretary of State are often the only remedy available to the applicant. It is possible to enlist the help of a Member of Parliament or a Member of the Northern Ireland Assembly to take up the case with the Secretary of State when all other appeals and reviews have been exhausted.

Regulation of Immigration Advisers The Immigration and Asylum Act 1999 set up a scheme for the regulation of all those non-legally qualified persons giving immigration advice. In order to provide immigration advice an individual or organisation must now be: — registered with the Office of the Immigration Services Commissioner (OISC), the regulator of the scheme; the obligation to register applies to the for-profit sector (eg commercial immigration consultants) and a registration fee is payable; — authorised to practise by a designated professional body—including the Law Society of Northern Ireland or the Bar Council for Northern Ireland; or — exempted by either the OISC or the Secretary of State; this covers advisers from the not-for-profit and voluntary sectors. Those who need to register or to apply for exemption must comply with the requirements of the scheme in relation to competency and management issues.

Useful Contacts BrysonIntercultural–MigrantHelp 123 Ormeau Rd Belfast BT7 1SH 028 9244 8448

176

Anne Grimes and Fidelma O’Hagan

Chinese Welfare Association 1 Stranmillis Embankment Belfast BT7 1GB tel: 028 9028 8277 www.cwa-ni.org Electronic Immigration Network (EIN)1 Delaunays Road Crumpsall Green Manchester M8 4QS tel: 0845 458 4151 www.ein.org.uk First-tier Tribunal (Immigration and Asylum Chamber) Eagle Building, 4th floor 215 Bothwell Street Glasgow G2 7EZ tel: 0845 600 0877 www.justice.gov.uk/tribunals/immigration-asylum Immigration Law Practitioners Association (ILPA) Lindsey House 40–42 Charterhouse Street London EC1M 6JN tel: 0207 251 8383 www.ilpa.org.uk Joint Council for the Welfare of Immigrants (JCWI) 115 Old Street London SE1V 9JR tel: 020 7251 87068 www.jcwi.org.uk Law Centre (NI) 124 Donegall Street Belfast BT1 2GY tel: 028 9024 4401 www.lawcentreni.org Law Centre (NI) Western Area 9 Clarendon Street Derry/Londonderry BT48 7EP tel: 028 7126 2433

Immigration Multi-Cultural Resource Centre 9 Lower Crescent Belfast BT7 1NR tel: 028 9024 4639 www.mcrc-ni.org Northern Ireland Community of Refugees and Asylum-Seekers 143a University Street Belfast BT7 1 HP tel: 028 9024 6699 email: [email protected] www.nicras.btck.co.uk Northern Ireland Council for Ethnic Minorities (NICEM) Belfast Migrant Centre Ascot House, 3rd floor 24–31 Shaftesbury Square Belfast BT2 7DB tel: 028 9023 8645 www.nicem.org.uk Office of the Immigration Services Commissioner (OISC) Counting House, 5th floor 53 Tooley Street London SE1 2QN tel: 0845 000 0046 oisc.homeoffice.gov.uk/ UK Visas and Immigration 1 Drumkeen Complex Upper Galwally Belfast BT8 6TP tel: 028 9019 1068 www.gov.uk/government/organisations/uk-visas-and-immigration

177

8 Processions, Protests and Other Meetings MICHAEL HAMILTON

Introduction The rights to freedom of peaceful assembly and freedom of association are protected (respectively) under Articles 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR) and (in combination) under Article 11 of the European Convention on Human Rights (ECHR). Together, these rights protect the many ways in which people come together in both public and private. The rights are regarded as fundamental to a democratic society—necessary for, amongst other reasons, individual self-fulfilment and ensuring effective political participation. As such, the European Court of Human Rights (ECtHR) has repeatedly emphasised that they should not be interpreted restrictively. The right to freedom of association protects the associational activities of both individuals and groups (such as political parties, clubs and trade unions) who are generally free to come together, without prior approval, to collectively pursue, promote or defend common interests. Associations may legitimately limit their membership—Article 11 ECHR does not impose an obligation to admit to an organisation anyone who wishes to join (since this would undermine the very essence of the freedom itself—see ASLEF v UK, 2007). It is significant that the progressive development of labour laws in many countries has led the ECtHR to recognise stronger protections for the activities of trade unions in relation both to collective bargaining (Demir and Baykara v Turkey, 2008) and strike actions (Enerji Yapi-Yol Sen v Turkey, 2009). That said, the right to strike is not an absolute right (see Metrobus Ltd v Unite Union, 2009) and certain rules must be followed concerning, for example, the balloting of union members and communicating the result to the employer (see the Trade Union and Labour Relations (NI) Order 1995). Furthermore, an individual’s associational activities can sometimes legitimately be restricted, most obviously in the case of criminal conspiracies (Criminal Attempts and Conspiracy (NI) Order 1983, art 9(1)) or inviting support for, or

180

Michael Hamilton

membership of, a proscribed organisation (Terrorism Act 2000, ss 11–12). Associational activities can also sometimes be limited because of the nature of an individual’s employment, though under the Fair Employment and Treatment (NI) Order 1998 (arts 3 and 19, as amended) employers must not discriminate against or harass an employee on grounds of religious belief or political opinion. The Police (NI) Act 2000, section 51(5), requires police officers to inform the Chief Constable if they believe that they are members of an organisation that might reasonably be regarded as affecting their ability to discharge their duties effectively and impartially. The remainder of this chapter focuses on the right to freedom of peaceful assembly. It sets out the legal (common law and statutory) provisions in Northern Ireland which are most relevant to its facilitation and restriction. The chapter highlights key definitions and institutions (their powers and duties) and identifies a number of core issues that have given rise to legal debate. While no attempt is made to provide comprehensive analysis of the case law in Northern Ireland (or, less still, that in England and Wales or of the ECtHR) relevant judgments are mentioned where these help to illustrate the likely application of the law in Northern Ireland.

Freedom of Peaceful Assembly The legislative framework governing processions, protests and other meetings in Northern Ireland has developed in response to the long, and often contentious, history of such events. The present law is principally contained in the Public Processions (NI) Act 1998. Open-air public meetings not related to parades are regulated by the Public Order (NI) Order 1987 (1987 Order). Both pieces of legislation have been amended since their enactment, and the legal requirements differ significantly from the relevant laws in England and Wales and in Scotland. In addition, under the Human Rights Act 1998, the legal regulation of assemblies must be compatible with the ECHR. Section 6 of the Human Rights Act makes it unlawful for a public authority to act incompatibly with Convention rights. On this basis, the authorities in Northern Ireland—in particular, the Parades Commission and the Police Service of Northern Ireland (PSNI)—have a duty to protect and facilitate peaceful assembly and association (along with other Convention rights) subject to the permissible limitations listed in Article 11(2) of the ECHR. The law in Northern Ireland distinguishes between five broad types of assembly, namely:

Under the Public Order (NI) Order 1987, Article 2(2) 1. ‘Meeting’ means ‘a meeting held for the purpose of the discussion of matters of public interest or for the purpose of the expression of views on such matters’.

Processions, Protests and Other Meetings

181

2. ‘Public meeting’ includes ‘any meeting in a public place and any meeting which the public or any section of the public is permitted to attend, whether on payment or otherwise’. 3. ‘Open-air public meeting’ means ‘a public meeting held otherwise than inside a covered and enclosed structure of an immoveable nature’.

Under the Public Processions (NI) Act 1998, Section 17(1) (as amended) 4. ‘Public procession’ means ‘a procession in a public place, whether or not involving the use of vehicles or other conveyances’. 5. ‘Protest meeting’ means an ‘open-air public meeting’ held in the vicinity of the route or proposed route of a public procession, at or about the same time as the procession, at least one of the purposes of which is to demonstrate opposition to the holding of that procession on that route or proposed route. These definitions are themselves not unproblematic. Thus, in Macartan Turkington Breen v Times Newspapers Ltd (2000) the House of Lords decided that a meeting (here, a press conference held in a private home) should be regarded as a public meeting if its organisers open it to the public or demonstrate an intention to communicate its proceedings to the public by issuing a general invitation to the press. Equally, the tautologous definition of ‘procession’ (a ‘procession’ is a ‘procession’ …) does not assist in answering some of the difficult questions that have arisen about when a gathering is, or is not, a procession. For example, must a procession by definition follow a pre-determined route? Or need a procession, by definition, have an organiser? These issues were raised in the cases of Kay v Commissioner of the Police of the Metropolis (2008) and Powlesland v DPP (2013), concerning ‘Critical Mass’ bicycle rides.

‘Public Places’ and ‘Public Buildings’ In law there are a number of different statutory definitions of ‘public place’, each quite specific to the activity being regulated. Distinguishing clearly between public and private places can therefore cause considerable difficulty in practice. Many central or symbolic locations might actually be privately owned (examples of such quasi-public places include car parks, shopping centres, graveyards, airports and garage forecourts). Indeed, processions and public meetings might deliberately be organised on privately owned property in order to call into question issues of ownership and access. There are two limbs to the definition of ‘public place’ in the 1987 Order and the 1998 Act. The first limb is: ‘any place to which the public … has access, on payment or otherwise, as of right or by virtue of express or implied permission’—a form of words that is shared by both provisions. However, the definitions of ‘public place’

182

Michael Hamilton

differ in relation to the second limb: the 1987 Order refers to ‘any street, road or highway’ whereas the 1998 Act refers to ‘any road within the meaning of the Roads (NI) Order 1993’. These two limbs are considered separately below.

‘Any Place to Which the Public … has Access, on Payment or Otherwise, as of Right or by Virtue of Express or Implied Permission’ In a case concerning the power to issue dispersal orders against groups (under the Anti-social Behaviour Act 2003 in England and Wales) May LJ remarked that this definition would ‘it seems, include cinemas, restaurants, coffee bars and public houses’ (see R (PW) v Commissioner of Police for the Metropolis, 2006). At the same time, even places to which the public might seem to have unimpeded access could be regarded as essentially private. In a case involving article 22 of the 1987 Order (possessing an offensive weapon in a public place) the Northern Ireland Court of Appeal accepted defence counsel’s argument that an area of pavement outside the door of a residential property, the surface of which was distinctive and which was bounded by bollards, ‘was a private area and not an area to which the public had access’: the lack of signs or the fact that there was nothing physically to prevent access by members of the public was not decisive in terms of its status (Police Service of Northern Ireland v McClure, 2007).

‘Any Street, Road or Highway’ or ‘any Road within the Meaning of the Roads (NI) Order 1993’ The 1993 Order defines ‘road’ as: ‘a public road, that is to say a road which is maintainable by the Department [of the Environment], and includes—(a) a road over which the public have a right of way on foot only, not being a footway; (b) any part of a road; and (c) any bridge or tunnel over or through which a road passes’. The scope of the Department’s duty of maintenance—and the related question of what constitutes ‘traffic’ on both carriageways and footways—was raised in the case of Madden v Department of the Environment for Northern Ireland (2003). Here, the Court of Appeal of Northern Ireland held that the Department’s duty of care extended not only to pedestrians on foot, but also to wheelchair users, pram pushers, skateboarders, tricycle riders and (as in that case) rollerbladers. Beyond these statutory definitions of ‘public place’, some public buildings (such as schools) may have specific limitations attached to their use, and certain public spaces may be nominally dedicated to a particular purpose (such as recreation) or be further regulated for certain purposes (such as conservation). Examples include: — limitations on political meetings in schools under the Primary Schools: General Regulations (NI) 1973 and the Secondary Schools (Grant Conditions) Regulations (NI) 1973; see also the circular issued by the Department of Education on 27 February 2013, Use of School Premises for Political Events; — public paths and public rights of way under the Access to the Countryside (NI) Order 1983; and

Processions, Protests and Other Meetings

183

— rights of access to forestry land for recreation under section 31 of the Forestry Act (NI) 2010. The Department for Environment, Food and Rural Affairs in England and Wales has issued a (non-binding) Information Note relating to the Countryside and Rights of Way Act 2000, stating that the right of access does not extend to nonrecreational activities including ‘political rallies’, but neither the 2000 Act nor this Note extend to Northern Ireland.

Processions and Protests In the financial year 2013–14, 4667 processions were notified to take place in Northern Ireland (an increase of 216 from the previous year). Of these, 59 per cent were organised by the Loyal Orders and unionist groups and 3 per cent were organised by nationalist groups. The remaining 38 per cent includes processions organised by charitable, civic and sporting organisations. Four hundred and ninety-one assemblies were categorised as sensitive (96 per cent of which were Unionist events), though it is not clear how many of these were ‘processions’ and how many were ‘protest meetings’. This number includes the weekly notifications in relation to the continuing dispute at Drumcree, Portadown and the increased number of parades in 2013–14 in the Woodvale/Twaddell areas of North Belfast. Restrictions relating to matters such as the number of supporters, route, location, music and/or banners were imposed on 432 assemblies.

The Parades Commission The Parades Commission was initially established in 1997 on a non-statutory basis. The Public Processions (NI) Act 1998 then placed the Commission on a statutory footing, with the adjudicatory powers recommended by the report of the Independent Review of Parades and Marches in Northern Ireland (the North Report, 1997). Despite the devolution of policing and justice powers to Northern Ireland in 2010, at the time of writing ‘the Parades Commission for Northern Ireland’ remains a reserved matter (under the Northern Ireland Act 1998, Sch 3, para 10). The document proposed by Dr Richard Haass and Professor Meghan O’Sullivan at the end of 2013 included a request that the Secretary of State for Northern Ireland ‘takes steps to devolve authority and responsibility for parades, protests, and events to the new institutions called for in this agreement’, but this has not yet occurred. There have been multiple reviews and proposals for reform of the Parades Commission. Indeed, its membership, which under Schedule 1 to the 1998 Act is required, as far as is practicable, to be ‘representative of the community in Northern Ireland’, has been challenged in court on three occasions (see Re Jane

184

Michael Hamilton

Elizabeth Armstrong’s Application, 1998; Re Evelyn White’s Application, 2000; and Re Duffy, 2008). Nonetheless, since 1998, there have only been two significant legislative amendments to the 1998 Act, both contained in the Public Processions (Amendment) (NI) Order 2005. First, the Order expanded the remit of the Commission to enable it to issue determinations in respect of ‘protest meetings’. Second, the Parades Commission’s powers to impose conditions on those ‘organising or taking part in’ public processions were extended to enable it also to impose conditions on non-participant supporters (or followers) of a public procession.

Duties and Powers of the Parades Commission The Parades Commission’s statutory duties under the Public Processions (NI) Act 1998 are to: — promote greater understanding by the general public of issues concerning public processions (s 2(1)(a)); — promote and facilitate mediation as a means of resolving disputes concerning public processions (s 2(1)(b)); — keep itself generally informed as to the conduct of public processions and protest meetings (s 2(1)(c)); and — keep under review, and make such recommendations as it thinks fit to the Secretary of State concerning, the operation of the Act (s 2(1)(d)). In addition, the Commission is empowered under section 2(2) of the 1998 Act to facilitate mediation (or to take other appropriate steps) to resolve parade disputes, and to issue determinations in respect of particular processions and protest meetings. This last function is discussed further at page 191 below.

The Procedure for Organising a Meeting, Procession or Protest Meeting The organisers of open-air public meetings, unrelated to public processions, have no legal obligation to notify the authorities that such a meeting is being planned. Under section 6 of the Public Processions (NI) Act 1998, however, organisers of a public procession must give at least 28 days’ notice to the police. The only exemptions are for funeral processions, or those specified in an order made by the Secretary of State (and, so far, only one such order exists—in relation to processions held by the Salvation Army along a route customarily followed by them). Section 7 of the same Act provides that a person proposing to organise a ‘protest meeting’ (as defined at the outset of this chapter) should give notice no later than 14 days before the date of the meeting. Following his visit to Northern Ireland in January 2013, the UN Special Rapporteur on the Rights to Freedom of Assembly

Processions, Protests and Other Meetings

185

and of Association stated that these were exceptionally lengthy notification timeframes, emphasising that they ‘should be reviewed regularly to ensure that the conditions warranting [them] still exist’. Notification should be made using one of the prescribed forms, that is, the 11/1 form (for processions) or 11/3 form (for related protest meetings), and these can be downloaded from the Parades Commission’s website. Notifications should be submitted to the PSNI station closest to the starting point of the parade route or location of the protest, although, ‘in exceptional circumstances or for personal security reasons’ which make it impossible for the organiser to submit notification at this police station, the form ‘should be accepted [at another police station] with a note being made on the rear page explaining the circumstances’ (PSNI Service Procedure 14/08). The Public Processions (NI) Act 1998 expressly provides for the late notification, without penalty, of any procession or related protest meeting where compliance with the statutory timeframe is ‘not reasonably practicable’. This exception allows for the possibility of spontaneous events—those organised in response to some recent occurrence where, for example, ‘a delay would have rendered that response obsolete’ (Éva Molnár v Hungary, 2008; Bukta v Hungary, 2007). In such a situation, notification must be given as soon as it is reasonably practicable to do so, and the reasons for late submission must be stated (ss 6(2)(b), 6(4)(g), 7(2)(b) and 7(4)(f) of the 1998 Act). The protocols developed between the Commission and the police state that ‘the responsibility for the decision in respect of the legality of the procession [and presumably also a protest meeting] rests with the Parades Commission’. See: www.psni.police.uk/service_procedure_1408.pdf. In addition, the Parades Commission has taken the position that it cannot rule on parades for which no notice has been submitted (an issue that arose most acutely in relation to the unnotified processions relating to the decision of Belfast City Council in December 2012 to fly the Union flag on its city hall only on designated flag days). This position might be regarded as questionable in light of the English case of Powlesland v DPP (2013). In Powlesland, the court rejected an argument that the police had no power to impose conditions on a procession (a ‘Critical Mass’ bicycle ride) simply because its route had not been formally notified. The court emphasised that the purpose of section 12 of the Public Order Act 1986 (which, like s 8 of the Public Processions (NI) Act, provides the statutory foundation for the imposition of restrictions on public processions) was ‘to enable an advance precautionary direction to be given for processions which are proposed, notified or not’. The court stated that: ‘There is no purpose in excluding unnotified processions from the scope of the power to give an advance precautionary direction.’

Transparency and the Commission’s Decision-making Process Rule 3.3 of the Parades Commission’s Procedural Rules states that: ‘All evidence provided to the Commission, both oral and written, will be treated as confidential

186

Michael Hamilton

and only for the use of the Commission, those employed by the Commission and Authorised Officers.’ The Commission, however, reserves the right ‘to express unattributed general views heard in evidence’. In this regard, the Commission has developed a practice of disclosing to an assembly organiser a summary of the gist of any concerns or objections raised (either by the police, the Commission’s own monitors and authorised officers, or others whose rights might be affected by the parade). This practice has been upheld by the courts. In Tweed v Parades Commission (2006), for example, Lord Brown emphasised that courts should guard against mere ‘fishing expeditions’, and that confidentiality remains a legitimate ground for refusing disclosure. In Tweed’s Application (No 5) (2009), Girvan LJ went even further, holding that ‘if evidence prejudicial to the applicant is regarded as so confidential that not even a gist of it can be provided fairness may require that it is left out [of the] account’. In Anderson v Information Commissioner (2011) the Information Tribunal noted that the Article 8 rights to respect for private life and correspondence of the Parades Commission’s monitors might be potentially engaged were their reports to be disclosed. Indeed, the Tribunal pointed out that the Commission ‘could find itself unable to recruit monitors, hence effectively to perform its statutory function’ if monitors’ reports were routinely disclosed. The applicant then appealed the Tribunal’s decision to the High Court and Weir J concluded that there is no right (under either Art 10 or Art 11 of the ECHR) to the provision of information provided in confidence. While these conclusions seem unambiguous, a question does remain regarding the applicability of Article 6 of the ECHR to the workings of the Parades Commission. Article 6 protects the right to a fair hearing in both criminal trials and hearings which determine a person’s ‘civil rights and obligations’. The phrase ‘civil rights and obligations’, however, has traditionally been interpreted to apply only to rights where ‘private law rights and obligations’ are at stake (see PierreBloch v France, 1997). It is thus unclear whether any of the rights determined by the Parades Commission would fall within the civil head of Article 6(1). It is notable that Lord Rodger, in the case of Re Duffy (2008), remarked as an aside that ‘the Parades Commission is not a body to whose proceedings Article 6 of the European Convention of Human Rights and Fundamental Freedoms applies’.

The Right to Peacefully Assemble Under the ECHR Article 11(1) of the ECHR protects the right to freedom of peaceful assembly and freedom of association. It reads: Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

Freedom of assembly is often closely related to freedom of expression (as protected by Art 10 of the ECHR). Where the facts of a case raise issues that potentially

Processions, Protests and Other Meetings

187

engage both of these rights, a court will seek to determine which Article is most relevant to the particular facts and explore the substantive elements of the case under that right (while also drawing upon relevant case law pertaining to the subsidiary right). On this basis, the ECtHR has sometimes found ‘a violation of Article 10 read in the light of Article 11 of the Convention’ (eg Fáber v Hungary, 2012). The same approach would be followed if freedom of religion (under Art 9 of the ECHR) were engaged on the facts of a case.

Factors Relevant to the ‘Peacefulness’ of an Assembly The ECtHR has held that: ‘The guarantees of Article 11 of the Convention apply to all assemblies except those where the organisers and participants have violent intentions or otherwise deny the foundations of a democratic society’ (see, eg Fáber v Hungary, 2012). On this basis, a parade or protest that is not peaceful (such as one where there is demonstrable evidence that the organisers have violent intentions or that the event will incite imminent violence) will not qualify for protection under Article 11(1). The Court has also emphasised that: ‘The burden of proving the violent intentions of the organiser of a demonstration lies with the authorities’ (Christian Democratic People’s Party v Moldova (No 2), 2010). Even if the message conveyed by an assembly is controversial or offensive, the event should not be characterised as ‘non-peaceful’ on that basis alone. Echoing its often-cited judgment in Handyside v UK (1976), in which it was noted that freedom of expression extends to information or ideas that ‘offend, shock or disturb’, the Strasbourg Court has held that: ‘Freedom of assembly … protects a demonstration that may annoy or cause offence to persons opposed to the ideas or claims that it is seeking to promote.’ (See, eg Alekseyev v Russia, 2010). Furthermore, an assembly should not be deemed non-peaceful simply because a small number of its participants engage in violence (Ziliberberg v Moldova, 2004). That said, the conduct of participants in an assembly can clearly place it beyond the protective scope of the right to peaceful assembly. Of note in this regard is the case of PF and EF v UK (2010), the ‘Holy Cross’ case. Here, the Strasbourg Court accepted that the behaviour of loyalist protesters created an intimidating atmosphere and resulted in considerable mental suffering. The Court emphasised that the conduct of the protesters was premeditated, continued over a two-month period, and set out to cause fear and distress to young children. As such, it reached the minimum level of severity required to fall within the scope of Article 3 of the ECHR—the right to freedom from torture, degrading or inhuman treatment. In a similar vein, it is worth noting that under Article 17 of the ECHR an assembly (whether a public procession or a protest meeting) may forfeit protection if it can be said that its purpose is the destruction of others’ rights or freedoms. In the case of Norwood v UK (2004), the ECtHR relied on Article 17 to dismiss the Article 10 claim of a member of the BNP who had been convicted in England under the Public Order Act 1986 for displaying a sign with a picture of the burning Twin Towers and the words ‘Islam out of Britain’.

188

Michael Hamilton

The Obligation to Protect and Facilitate Peaceful Assemblies, without Discrimination Once it has been established that an assembly is itself likely to be peaceful, the State has an obligation to protect and facilitate that assembly unless there are relevant and convincing reasons to justify its restriction under Article 11(2) of the ECHR (Plattform Ärzte für das Leben v Austria, 1988). Under Article 14 of the ECHR the right must be upheld in a way that is non-discriminatory (eg Alekseyev v Russia, 2010). Indeed, the Court has gone further in emphasising that mere opposition or hostility to an assembly is not a reason for imposing restrictions upon it: What is at stake here is the preservation of pluralism and the proper functioning of democracy, and the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (Barankevich v Russia, 2007).

Restrictions on Public Processions and Open-air Protest Meetings In addition to conferring broad protection on freedom of assembly, Article 11(2) of the ECHR also expressly provides for the restriction of even peaceful assemblies: No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or the administration of the State.

Restrictions on the right to freedom of peaceful assembly can take many forms. In Northern Ireland, the most obvious of these are restrictions imposed by the police or Parades Commission. However, courts can also impose limitations on the right to assemble through the setting of bail conditions (see, eg Re McGlinchy, 2011, where the applicant was provisionally granted bail on the condition, amongst others, that she did not attend a public procession) and through the imposition of civil injunctions and possession orders. These can apply to individuals (even unnamed persons) and to groups, and might extend to assemblies on both public property (perhaps to prevent harassment or nuisance) and private property (perhaps to prevent trespass). Most significantly, the police also exercise discretion under the common law to take proportionate actions to prevent a breach of the peace where such a breach is reasonably believed to be imminent (see page 203 below). In Fáber v Hungary (2012) the ECtHR reiterated the need to protect freedom of assembly even if its message is shocking. This case concerned a silent counterprotester who was protesting in the vicinity of an anti-racism rally and whose flag was confiscated by police. The flag was a historical flag associated with the

Processions, Protests and Other Meetings

189

political far-right, though it was relevant that the flag had not itself been specifically prohibited by law. Finding that the Hungarian authorities had disproportionately interfered with the applicant’s right to freedom of expression, the court in Fáber underscored the need for ‘careful examination of the context’ in order to ‘draw a meaningful distinction between shocking and offensive language which is protected by Article 10 and that which forfeits its right to tolerance in a democratic society’. The case is especially significant because it established a threshold for determining when speech could legitimately be restricted in terms of ‘intimidation’, drawing on US cases concerning the burning of crosses. Given its potential relevance to the display of contentious symbols in Northern Ireland, this passage is worth quoting from the Court’s judgment (para 58): The Court does not exclude that the display of a contextually ambiguous symbol at the specific site of mass murders may in certain circumstances express identification with the perpetrators of those crimes; it is for this reason that even otherwise protected expression is not equally permissible in all places and all times. In certain countries with a traumatic historical experience comparable to that of Hungary, a ban on demonstrations—to be held on a specific day of remembrance—which are offensive to the memory of the victims of totalitarianism who perished at a given site may be considered to represent a pressing social need. The need to protect the rights to honour of the murdered and the piety rights of their relatives may necessitate an interference with the right to freedom of expression, and it might be legitimate when the particular place and time of the otherwise protected expression unequivocally changes the meaning of a certain display.

While Fáber v Hungary (2012) provides an example of a protest that did not meet the threshold of ‘intimidation’, a subsequent case (also concerning the activities of the far-right in Hungary) involved a series of demonstrations that cumulatively did meet this threshold. In Vona v Hungary (2013) the banning of an association (the Magyar Garda) was held to be justified largely on the basis of the intimidatory assemblies it had organised in villages with large Roma populations. The ECtHR held that these marches created ‘an anti-Roma atmosphere by verbal and visual demonstrations of power’. Noting the cumulative effects of ‘military-like uniforms, formations, commands and salutes’, the Court held that ‘a paramilitary march goes beyond the mere expression of a disturbing or offensive idea, since the message is accompanied by the physical presence of a threatening group of organised activists’. The Court in Vona also accepted the argument that those who lived in the villages were effectively a ‘captive audience’ because they had been unable to avoid the expression of these ‘extreme and exclusionary views’. Similar arguments have been implicitly accepted in a number of UK cases (eg University of Oxford v Broughton, 2006). Equally, in Re Tweed’s Application (No 5) (2009), Girvan LJ considered the potential impact of parades on a person’s ‘quiet enjoyment’ of their home environment (protected by Article 8 of the ECHR). He concluded that: [I]n the context of contentious parades where there is a real risk that a parade will generate disorder and violence this will carry with it the real risk of interference with innocent individuals’ enjoyment of their home environment and of their private lives.

190

Michael Hamilton

As these cases clearly demonstrate, it is not only the rights of those who themselves wish to peacefully assemble that must be taken into account. Processions, protests and other open-air public meetings also potentially engage the rights of those who live or work in the areas where such events are held. Where there is likely to be a significant impact on the rights and freedoms of others, the competing rights claims should be scrutinised in parallel. In other words, the Parades Commission must not only ask whether freedom of assembly should be protected at the expense of some interference with the rights of others, but also whether the protection of these other rights might legitimately entail some interference with the right to freedom of peaceful assembly.

Restricting Open-air Public Meetings The power to impose conditions on open-air public meetings (except for protest meetings related to a public procession) is conferred by article 4(2) of the 1987 Order. This requires a senior police officer reasonably to believe that the meeting may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or that its purpose is the intimidation of others with a view to compelling them not to do an act they have a right to do or to do an act they have a right not to do. The police officer may then impose such conditions as to the place where the meeting may be held, its maximum duration, or the maximum number of persons who may constitute it, as appear necessary to prevent such disorder, damage, disruption or intimidation. The directions given by the senior officer must be in writing, except in cases where people are already assembling for the meeting.

Banning Open-air Public Meetings The power to prohibit open-air public meetings is conferred by article 5(1) of the 1987 Order, as amended by the Public Processions (NI) Act 1998 and the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010. It is now the Department of Justice that has the power to prohibit open-air public meetings. To do so, it must be of the opinion that the meeting is likely to: — cause serious public disorder; — cause serious disruption to the life of the community; or — make undue demands upon the police. The Department may then make an order prohibiting for up to 28 days the holding in that area of all or specified open-air public meetings. It is noteworthy,

Processions, Protests and Other Meetings

191

though, that under article 5(1ZA) of the 1987 Order, the Secretary of State retains the power to ban open-air public meetings if he or she is of the opinion that it would cause undue demands to be made upon the military. There is no requirement that the Department of Justice or Secretary of State obtains the consent of the Chief Constable before issuing a banning order. In practice, however, the view of the Chief Constable is likely to be accorded substantial weight. That said, the 1987 Order also provides that a statement made by either the Department of Justice or the Secretary of State as to the need to prohibit a meeting ‘shall be conclusive evidence of the matters stated therein’ (art 5(3)). This provision undoubtedly makes it difficult, if not impossible, to challenge the proportionality of the opinion of the Department or Secretary of State in judicial review proceedings.

Restricting Public Processions and Related Protest Meetings The power to impose conditions on public processions and related protest meetings rests with the Parades Commission, and such conditions may include ‘prohibiting [a procession] from entering any place’ (s 8(2) of the Public Processions (NI) Act 1998). The Secretary of State can revoke or amend a determination of the Commission following an application by the Chief Constable (ss 9 and 9B of 1998 Act), but this power has not yet been exercised. Section 8(6) of the 1998 Act provides that the Commission shall have regard to: — any public disorder or damage to property which may result from the procession; — any disruption to the life of the community which the procession may cause; — any impact which the procession may have on relationships within the community; — any failure of a person of a description specified in the guidelines to comply with the Code of Conduct; and — the desirability of allowing a procession customarily held along a particular route to be held along that route. Section 9A(6), which sets out the grounds upon which the Parades Commission may impose conditions on protest meetings, replicates the criteria in section 8(6) (a)–(d) regarding processions. In accordance with section 5 of the 1998 Act the Commission has published Guidelines setting out the factors which it will take into account when determining whether a procession or protest meeting should be made subject to conditions. While no cases have arisen involving the interpretation of sections 9A(6)(d) or 8(6)(d)–(e), a number of judgments—both before and after the enactment

192

Michael Hamilton

of the Public Processions (NI) Act—are potentially relevant to the interpretation of sections 8(6)(a)–(c) and 9A(6)(a)–(c). The early cases, such as Re McManus (1990) in relation to the public disorder criterion as applied to a hunger strike commemoration in Belfast, and Re Murphy (1991) in relation to the ‘disruption to the life of the community’ criterion as interpreted by the police in deciding not to restrict an Orange Order parade in Pomeroy, must now be read in light of the case law of the ECtHR. Of particular relevance is the Court’s judgment in Ezelin v France (1991), that a person should not generally forfeit their right to freedom of assembly unless they themselves have acted ‘reprehensibly’, or unless there is a demonstrable impact on the rights and freedoms of others. Of particular note is the mismatch between the permitted grounds for restricting freedom of assembly under Article 11(2) of the ECHR and the criteria in the Public Processions (NI) Act (especially, s 8(6)(c)). This mismatch has prompted several (ultimately unsuccessful) legal challenges arguing that the 1998 Act is fundamentally incompatible with the Convention. In one such case (Re Tweed (No 1), 2001) the court held that, so long as the Commission’s determinations pursue at least one of the legitimate aims listed in Article 11(2) of the ECHR, the additional factors in section 8(6) of the Public Processions (NI) Act can properly be factored into the Commission’s assessment of whether or not restrictions are ‘necessary in a democratic society’. In a subsequent case brought by the same applicant (Re Tweed (No 5), 2009), the Court of Appeal held that: [W]here the impact on relationships within the community brings into play enhanced risks of public disorder, damage to property, criminality (which may fall short of public disorder but of its nature impacts on the rights and freedoms of others) or other types of interference with the legitimate rights and freedoms of others then that impact on relationships within the community would be a proper matter to which the Commission could have regard when exercising its section 8 powers.

The Northern Ireland courts have also noted that ‘Strasbourg and domestic case law has not fully or finally established the full parameters of what constitute rights and freedoms to which regard may properly be had’: the rights and freedoms of others referred to in Article 11(2) of the ECHR may extend beyond those rights enumerated in the Convention itself (see Re Tweed, 2007, citing Chassagnou v France, 1999). As such, these rights and freedoms could therefore be read to include the ‘right to freedom from sectarian harassment’, as provided for in the Belfast (Good Friday) Agreement 1998. In so far as the interpretation of the community relations criterion has been further clarified, the Court of Appeal has held that ‘community’ is not necessarily confined to those living in the immediate vicinity of a particular parade (but may also include the impact on the wider community in Northern Ireland) and that it also covers the impact on both intra- and inter-community relations (see Re Pelan, 1998 and Re Tweed (No 5), 2009). In addition, the Parades Commission has explained that when it applies this criterion it ‘looks for evidence of a real

Processions, Protests and Other Meetings

193

attempt on the part of the parade organiser to address the legitimate concerns of others and a preparedness to accommodate those concerns’. In doing so, the Commission has often examined whether the organiser has engaged meaningfully with the local community, as well as examining the stance and attitudes of local community members and representatives (see the Commission’s Guidelines document, at para 4.5). In Re Tweed (No 5) (2009), the Court held that: ‘The fact of a lack of agreement between the would-be marchers and the local community is relevant to the question of the risk of disorder and of wider spread tension or effects.’ Furthermore, the High Court upheld a Parades Commission ruling which restricted a band parade primarily because the organiser had not engaged with residents of the local community. The Court was satisfied that the aim of promoting engagement between parade organisers and local communities ‘is legitimate in that it is directed to promote good community relations by preventing disorder and protecting the rights and freedoms of the local community’ (Re an Application for Judicial Review by Ballymaconnolly Sons of Conquerors, 2012).

Banning Public Processions and Related Protest Meetings Unlike the power to ban open-air public meetings (see page 190 above), the power to ban public processions has not been devolved to the Department of Justice. Only the Secretary of State can ban processions in Northern Ireland, and only if he or she considers it to be necessary in the public interest to do so (Public Processions (NI) Act 1998, s 11). Under the 1998 Act, the Secretary of State must have regard to: — any serious public disorder or serious damage to property which may result from the procession; — any serious disruption to the life of the community which the procession may cause; — any serious impact which the procession may have on relationships within the community; and — any undue demands which the procession may cause to be made on the police or military forces. The Secretary of State can ban any individual parade or, should that be considered insufficient having regard to the above factors, all parades in a particular area for a period not exceeding 28 days. This power was last exercised in 1996 (under art 5 of the 1987 Order) to prohibit all parades in Derry/Londonderry along the stretch of the city walls overlooking the Bogside between 7 and 31 August.

194

Michael Hamilton

Offences This section overviews the offences most likely to arise in the context of processions, protests or other meetings. These are principally set out in the Public Processions (NI) Act 1998 and the 1987 Order. A number of additional common law and statutory offences are also highlighted. In relation to the sentencing of those found guilty of these offences, article 33 of the Criminal Justice (NI) Order 1996 provides for the possibility of discounted sentences if an early plea of guilty is entered. The Guidance issued in 2012 by the Director of Public Prosecutions (DPP) in England and Wales relating to ‘Public Protests’ is also of general note (see www.cps.gov.uk) and may be referred to by judges in Northern Ireland.

Obstructing or Impeding a Police Officer in the Execution of His or Her Duty Section 66(1) of the Police (NI) Act 1998 makes it an offence (amongst other things) to obstruct or impede a constable in the execution of his or her duty. It was affirmed, however, in Chief Constable of the PSNI v Devlin (2008) that simply refusing to provide one’s name and address to a police officer—a failure to cooperate rather than active obstruction—is not, of itself, sufficient to constitute ‘obstruction’, unless the police have some other legal basis for requesting this information (such as that conferred by s 13(1)(b) of the Public Processions (NI) Act 1998 where a police officer has a reasonable suspicion that someone is consuming alcohol).

Organising or Taking Part in a Procession or Protest that has not been Properly Notified Under sections 6(7) and 7(6) of the Public Processions (NI) Act 1998, a person who organises or takes part in a public procession or protest meeting which has not been properly notified, or which departs from the notified date, time, route or place, will be guilty of an offence. If the offence relates to a difference of date, time, route or place it is a defence for the accused to prove that the difference arose either from circumstances beyond his or her control, from something done in compliance with conditions imposed by the Parades Commission, or from something done with the agreement of a member of the PSNI not below the rank of inspector. A person found guilty of this offence faces a maximum penalty of six months’ imprisonment and a fine of up to £5,000.

Processions, Protests and Other Meetings

195

Organising or Taking Part in a Banned Procession, Protest or Open-air Public Meeting A person who knowingly organises or takes part in a protest meeting which he or she knows is prohibited is guilty of an offence and liable to a term of imprisonment of up to six months and a fine not exceeding £5,000 (ss 11(8)–(9) and 11A(7)–(8) of the Public Processions (NI) Act 1998 and art 5(5) of the 1987 Order, as amended).

Failing to Comply with a Condition Imposed on an Open-air Public Meeting A person who knowingly fails to comply with a condition imposed on an open-air public meeting under article 4 of the 1987 Order, or who organises or takes part in a meeting that he or she knows to be prohibited under article 5 of the 1987 Order, is punishable (summarily) with up to six months in prison and a £5,000 fine. It is a defence for the accused to prove that the failure arose from circumstances beyond his or her control.

Failing to Comply with a Condition Imposed by the Parades Commission A person who knowingly fails to comply with a condition imposed by the Parades Commission, or who incites another person not to comply with such a condition, is liable to a maximum sentence of six months’ imprisonment and a fine not exceeding £5,000 (ss 8(7), 8(8), 9A(7) and 9A(8) of the Public Processions (NI) Act 1998), unless this failure arose from circumstances beyond the individual’s control, or was done under the direction of a member of the PSNI of at least the rank of inspector. Two questions that might potentially arise are worth highlighting. The first concerns the precise time at which a person ceases to take part in a restricted procession or protest meeting, whereupon they would no longer be bound by the Commission’s conditions (see, eg the English case of Jukes v DPP, 2013). Second, since the legislation does not specifically empower the Commission to regulate the activity of ‘persons supporting’ a protest meeting (in contrast to those supporting a procession), it might be queried whether either showing support for, or attendance at, a protest is necessarily the same as ‘taking part in’ it. Since the offence of participation in an unlawful protest meeting must be proven beyond reasonable doubt, it may be difficult, evidentially, to distinguish between individuals who simply observe a procession from the pavement, and those actively taking part in a protest meeting.

196

Michael Hamilton

Breaking up a Public Procession or Protest Meeting Under section 14 of the Public Processions (NI) Act 1998, as amended, it is an offence to attempt to break up a public procession or protest meeting. This includes hindering or obstructing persons taking part in a procession or protest, or acting in a disorderly fashion or behaving ‘offensively and abusively’ towards them. This offence carries a maximum penalty of six months in prison and a fine up to £5,000.

Indecent Behaviour in a Public Place or Place to Which the Public have Access Section 9 of the Criminal Justice (Miscellaneous Provisions) Act (NI) Act 1968, as amended, criminalises indecent behaviour in any public place and this offence carries a maximum penalty of six months’ imprisonment and a fine of £1,000.

Use of Words or Behaviour or Display of Written Material that is Threatening, Abusive or Insulting Under article 9 of the 1987 Order (as amended by article 3 of the Criminal Justice (No 2) (NI) Order 2004) it is an offence to use or display threatening, abusive or insulting words or behaviour either with intent to stir up hatred or fear of a section of the community in Northern Ireland, or where such hatred or fear is likely to be stirred up. For the offence to be made out, the hatred or fear must be directed at a group of persons defined by their religious belief or lack of religious belief, sexual orientation, disability, colour, race, nationality, or ethnic or national origin, and the accused must at least have been aware that his or her behaviour might be threatening, abusive or insulting. Notwithstanding the removal of the word ‘insulting’ from section 5 of the Public Order Act 1986 in England and Wales (by s 57 of the Crime and Courts Act 2013), the word ‘insulting’ survives in several statutory offences in Northern Ireland, such as those in articles 9 and 19(1)(a) of the 1987 Order, and section 37(3)(c) of the Justice Act (NI) 2011 (regarding chanting at regulated football matches). The House of Lords has said that behaviour does not qualify as threatening, abusive or insulting just because it gives rise to a risk that immediate violence will be provoked, nor is it enough that the behaviour gives rise to anger, disgust or distress: see Brutus v Cozens (1972) where the defendant had merely run on to the No 2 court at Wimbledon Lawn Tennis Club and distributed leaflets. A number of subsequent English cases reveal the difficulty of interpreting the term ‘insulting’ and what might properly be regarded as a proportionate response to such speech under Article 10 of the ECHR (eg Percy v DPP, 2001; Norwood

Processions, Protests and Other Meetings

197

v UK, 2004; Hammond v DPP, 2004). In Abdul v DPP (2011) the court upheld convictions under section 5 of the Public Order Act in relation to a protest against a ‘homecoming’ parade for British soldiers who had been serving in Afghanistan. The court emphasised that while Article 10(2) protects the rights of people to hold and express a different viewpoint, it does not confer a right to abuse and insult gratuitously. Given the requirement in article 9 of the 1987 Order that there be either intent or likelihood of stirring up hatred on one or more of the mentioned grounds, the case of William Walls v Procurator Fiscal (2009) is also of note. Here, the ‘Famine Song’ was sung at a Rangers versus Kilmarnock football match in Scotland. The Scottish Appeal Court rejected the argument that the lyrics of the ‘Famine Song’ could reasonably be compared to those of ‘Flower of Scotland’ or ‘God Save the Queen’: ‘Rather they are racist in calling upon people native to Scotland to leave the country because of their racial origins’ and displayed malice and ill-will towards people of Irish descent living in Scotland (see also, DPP v Chippendale, 2004).

Disorderly Behaviour In Clinton v Watts (1992) the Court of Appeal of Northern Ireland held that words alone (eg swearing and shouting) can constitute disorderly behaviour under article 18(1)(a) of the 1987 Order. Moreover, it is sufficient that the behaviour is seen by a police officer: it does not have to be directed towards any particular person provided it at least seriously infringes the values of orderly conduct ‘recognised by right-thinking members of the public’. Separately, under article 7(2) of the 1987 Order, a person is guilty of an offence, punishable in a magistrates’ court by up to six months in prison and a fine of up to £5,000, if he or she at a lawful public meeting (other than a ‘protest meeting’) ‘acts in a disorderly manner for the purpose of preventing the transaction of the business for which the meeting was called together’.

Behaviour Likely to Occasion a Breach of the Peace It is an offence under article 18(1)(b) of the 1987 Order for a person in any public place to use behaviour whereby a breach of the peace is likely to be occasioned.

Riotous Behaviour in a Public Place Article 18(3) of the 1987 Order makes it an offence to use riotous behaviour in any public place. The maximum penalty is 12 months in prison and a fine of £5,000 (art 28 of the Criminal Justice (NI) Order 2003). Unlike many offences

198

Michael Hamilton

which carry the possibility of imprisonment for a term of more than six months, a person charged with riotous behaviour does not have the right to claim trial by jury (art 29(1) of the Magistrates’ Courts (NI) Order 1981, as amended by art 29 of the Criminal Justice (NI) Order 2003).

Unlawful Assembly While the Public Order Act 1986 abolished the common-law offence of unlawful assembly in England, this offence still remains in Northern Ireland. A person is guilty of unlawful assembly if he or she is a member of an assembly of three or more people which is either causing a disturbance or giving rise to a reasonable apprehension of a breach of the peace (which generally requires the occurrence, or threat, of violence against persons or property: R v Howell, 1982; R (Laporte) v Chief Constable of Gloucestershire Constabulary, 2006). The offence can be committed both on private property and in public places, and the assembly need not be densely packed in order to be unlawful: persons illegally occupying 70 houses over a five-week period have been held to constitute an unlawful assembly (McKibben v Belfast Corporation, 1936).

Riot In Northern Ireland, riot is still a common-law offence committed whenever three or more people, in execution of a common purpose, use force or violence which alarms or terrifies at least one person ‘of reasonable firmness’, and with an intent to assist one another, by force if necessary, against any person who may oppose them. The maximum penalty is life imprisonment (compared with the statutory maximum of 10 years in England and Wales). Notwithstanding the differences between the common law position in Northern Ireland and the statutory scheme in England and Wales, the sentencing levels for riot in Northern Ireland are based on those established in the English case of R v Najeeb (2003), which followed serious rioting in Bradford city centre in July 2001. Burgess J broadly followed Najeeb in R v Heagney (2012), concluding that the riots in Belfast in June and July 2011 were not spontaneous but rather ‘followed a dismal and ritualistic course set in previous years’. As such, he described the term ‘recreational rioting’ as absurd, and sought to impose harsh sentences with a strong deterrent effect. This ruling has since been followed in R v McMullan (2012) and R v McKeown (2013). In the latter case, Morgan LCJ delivered the court’s judgment, holding: In the case of those present for a significant period and repeatedly throwing missiles such as bricks or stones, a sentence of five years following a trial is appropriate. Ringleaders should expect sentences of 10 years following a trial and those who instigate or organise

Processions, Protests and Other Meetings

199

those present or use more serious violence should expect sentences between five and 10 years after a trial. We do not consider that we need to be any more prescriptive.

As emphasised in cases arising from the riots that spread across in England in August 2011, when it comes to sentencing it is vitally important for courts to distinguish the context and intensity of one riot situation from another (eg R v Blackshaw, 2011). It is also noteworthy that along with manslaughter, kidnapping and false imprisonment, the offences of riot and affray are ‘specified offences’ under Schedules 1 and 2 to the Criminal Justice (NI) Order 2008. On this basis, an individual who is assessed as being dangerous (presenting a significant risk of serious harm to members of the public) may be subject to enhanced sentencing powers, including powers to impose discretionary life sentences, and indeterminate and extended custodial sentences.

Provocative Conduct in a Public Place or at a Public Meeting or Procession Under article 19 of the 1987 Order it is an offence ‘at or in relation to any public meeting or public procession’ (or indeed in any public place) if a person uses threatening, abusive or insulting words or behaviour, or displays anything or does any act, with intent to provoke a breach of the peace or by which a breach of the peace or public disorder is likely to be occasioned (whether immediately or at any time afterwards). Under the same provision, land owners or occupiers of premises can also be held liable if any such display or act occurs on their property. In Clinton v Watts (1992), the Court of Appeal of Northern Ireland emphasised that, unlike article 18 (see page 197 above), the article 19 offence requires either proof of an intent to provoke a breach of the peace or proof that the acts of the accused made a breach of the peace or public disorder likely. The maximum penalty is imprisonment for a term not exceeding six months and a fine of £5,000.

Harassment Under the Protection from Harassment (NI) Order 1997, a ‘course of conduct’ amounting to harassment of another is both a crime and a civil wrong. In Thomas v News Group Newspapers Ltd (2002) it was held that harassment must not be given an interpretation which restricts the right to freedom of expression, save in so far as this is necessary in order to achieve one of the legitimate aims contained in Article 10 of the ECHR. Two important cases heard before the Human Rights Act 1998 came into force in 2000 (Huntingdon Life Sciences Ltd v Curtin, 1997 and DPP v Mosley, 1999) further suggest that the Protection from Harassment Act 1997 (the equivalent, in England and Wales, of the 1997 Order) was not intended by Parliament to be used to sanction restrictions on the right to peaceful assembly.

200

Michael Hamilton

Nonetheless, as previously noted, it has provided the basis for the imposition of injunctions against protesters (eg University of Oxford v Broughton, 2004, 2006 and 2008), and the express inclusion in the Belfast (Good Friday) Agreement 1998 of a ‘right to freedom from sectarian harassment’ means that this is a factor that may be considered under the ‘rights and freedoms of others’ in Article 11(2) of the ECHR. The extent to which ‘harassment’ and ‘intimidation’ (see page 189 above) establish similar behavioural thresholds in the context of processions and protests has yet to be considered by the courts.

Affray This common-law offence consists of unlawful fighting, or a display of force, in such a manner as to terrify a person ‘of reasonable firmness’ (who does not have to be present at the scene). It can be committed by one person acting alone, but is commonly charged whenever the police break up street fights or pub brawls. The maximum theoretical penalty is life imprisonment (whereas the statutory offence under the Public Order Act 1986 in England and Wales carries just a threeyear maximum term). In Attorney General’s Reference (No 1 of 2006), the Court of Appeal of Northern Ireland held that the sentencing guidelines issued by the Court of Appeal of England and Wales in R v Keys (1986) should not be applied in Northern Ireland.

Obstructive Sitting etc in Public Places Article 20 of the 1987 Order provides for the offence of ‘obstructive sitting in a public place’ for anyone who wilfully obstructs or seeks to obstruct traffic or who wilfully hinders or seeks to hinder other lawful activity. The ECtHR has emphasised that all processions and protests cause a certain level of disruption which must be tolerated, but the Court has generally been reluctant to afford protection to intentionally obstructive protests (eg Barraco v France, 2009). Nonetheless, in the case of Kudrevicˇius v Lithuania (2013) the Strasbourg Court found that the Lithuanian authorities had violated the right to freedom of assembly of a group of farmers who, in breach of both permit conditions and police instructions, had peacefully blocked a number of main roads for two days (causing significant disruption) to protest against the fall in milk purchase prices and lack of agricultural subsidies. Decisive in this case was the fact that the farmers had been charged with taking part in a riot, a charge which the Court viewed as wholly disproportionate because ‘the applicants gave evidence of their flexibility and readiness to cooperate with the other road users’ and ‘the element of violence was clearly absent’. See too, the ruling of the Court of Justice of the EU in Eugen Schmidberger, Internationale Transporte und Planzüge v Republik O˝sterreich (2003).

Processions, Protests and Other Meetings

201

Wearing Uniforms, or Displaying Items that Indicate Support for a Proscribed Organisation Article 21 of the 1987 Order prohibits a person in any public place or at any public meeting from wearing a uniform signifying an association with any political organisation or with the promotion of any political object. The Chief Constable may, with the Department of Justice’s consent, permit exceptions to this prohibition, but only for ceremonial, anniversary or other special occasions. This is a startlingly wide provision, made wider by the fact that there is no definition of ‘uniform’ in the 1987 Order. As such, the courts will have to decide whether, for instance, wearing an armband or some kind of sash—or indeed common items of fashionable clothing—is enough to constitute a uniform. In the English case of O’Moran v DPP (1975) it was held that the wearing of dark berets, dark glasses, dark pullovers and other dark clothing, when escorting the coffin of an IRA supporter through London streets, could be regarded as a uniform. Under section 13 of the Terrorism Act 2000 it is an offence for any person in a public place to wear an item of clothing or wear, carry or display an article in such a way as to arouse reasonable apprehension that he or she is a member or supporter of a proscribed organisation. The maximum penalty is six months’ imprisonment and a fine of up to £5,000. In the Scottish case of James Rankin v Procurator Fiscal (2004) the appellant was stopped by police at the ferry terminal at Troon as he disembarked from a sailing from Belfast. He was wearing a ring bearing the initials of the Ulster Volunteer Force in such a way that the initials were clearly visible. Notwithstanding the appellant’s argument that the ring was a gift from his wife, the judge held that it fell within the scope of section 13 (albeit at the least serious end of the spectrum) since ‘the carrying or displaying of a single article may, if done in a relevant way or in relevant circumstances, be sufficient to arouse reasonable suspicion of the specified kind’. Of related interest, there have been three separate (and unsuccessful) challenges to the ban on wearing political emblems (in particular, the Easter Lily) in communal areas of Northern Ireland’s prisons, even in segregated wings (see Re John Byers’ Application, 2004; Re McCafferty’s Application, 2008; Re Donaldson’s Application, 2009 and, relatedly, Donaldson v UK, 2011).

Refusal to Surrender Alcohol Section 13 of the Public Processions (NI) Act 1998 permits the police to confiscate alcohol being carried by those parading, about to parade, or otherwise present in the vicinity of a procession. Anyone who refuses to surrender alcohol is liable to a fine of up to £500. Also noteworthy is the power of district councils to specify as ‘designated public places’ any areas which have been associated with

202

Michael Hamilton

alcohol-related disorder, nuisance or annoyance (s 70 of the Criminal Justice (NI) Order 2008). Failure to comply with a direction to surrender alcohol under article 68 of the 2008 Order without reasonable excuse may entail a fine not exceeding £500. Under article 69 of the 2008 Order, an article 68 offence committed by someone over 16 years of age may also be disposed of by way of a fixed penalty notice.

Trespass on a ‘Public Building’ Article 23 of the 1987 Order makes it a criminal offence to trespass on a ‘public building’ (a term which is widely defined and includes any part of a building owned or used for the purposes of any grant-aided school or institution of further or higher education) or knowingly to interfere with the carrying on of any lawful activity in any public building. The maximum penalty for failing to obey a direction to leave the building (which can be given by a police constable, or by any person so authorised in writing by the owner or lawful occupant or user of the building) is two years’ imprisonment and an unlimited fine.

Trespass on Private Property Under the common law, owners of private land generally have a right to refuse access. This may be overridden in cases where there is no adequate alternative for the expression of particular views. In the case of Appleby v UK (2003) the applicants wanted to assemble in a privately owned shopping mall in Tyne and Wear to campaign against plans to build on a local playing field. Taking into consideration the property rights of the mall’s owner under Article 1 of Protocol 1 to the ECHR, the ECtHR ultimately found that there was no violation of the applicants’ right to freedom of expression since there were other alternative channels of communication available to them and they had not been prevented from exercising their Article 10 rights ‘in a meaningful manner’. See also, The Mayor Commonalty and Citizens of London v Samede (2012) in which the Court of Appeal upheld the possession orders against ‘Occupy London’.

Police Powers In responding to violence related to protests and processions, responsibility for deciding what weaponry is available to the police in Northern Ireland lies primarily with the Chief Constable. In 2011, the Lord Chief Justice held that the decision to obtain and deploy Tasers fell within the operational competency of the Chief Constable and did not require authorisation by the Northern Ireland Policing Board under either section 3 or 6 of the Police (NI) Act 2000: see Re JR1 (2011).

Processions, Protests and Other Meetings

203

The paragraphs below summarise the police powers most likely to be relied upon in the context of parades and protests.

Common Law Powers to Take Action to Prevent an Imminent Breach of the Peace Police action to prevent a breach of the peace is permissible only where there is a reasonable apprehension of an imminent breach. In R (Laporte) v Chief Constable of Gloucestershire Constabulary (2006) the anticipated breach was held not to be sufficiently imminent to justify the police action against protesters travelling to a demonstration at RAF Fairford in Gloucestershire. In Schwabe and MG v Germany (2011) the ECtHR also underscored the importance of a proportionate response by law enforcement officials, even in highly charged situations where violence might be anticipated. In Laporte, however, Lord Rodger noted that: ‘There is no need for the police officer to wait until the opposing group hoves in sight before taking action. That would be to turn every intervention into an exercise in crisis management.’ Lord Carswell also emphasised that: the imminence or immediacy of the threat to the peace is an essential condition which should not be diluted … [H]owever, … where events are building up inexorably to a breach of the peace it may be possible to regard it as imminent at an earlier stage temporally than in the case of other more spontaneous breaches.

Such concessions ultimately meant that in Hicks, ‘M’, Pearce and Middleton v Commissioner of Police of the Metropolis (2014) the arrest of protesters in advance of the Royal Wedding was found to be based on a reasonable belief that an imminent breach of the peace would occur (see also Wright v Commissioner of Police for the Metropolis, 2013). Two related issues deserve specific mention in relation to such preventive actions. The first concerns the police strategy of ‘kettling’ (or ‘containing’) protesters. This was found in Austin v UK (2012) not to constitute a deprivation of liberty under Article 5 of the ECHR (see also Ostendorf v Germany, 2013 and McClure and Moos v The Commissioner of the Police of the Metropolis, 2012). The UK has not ratified Protocol 4 of the ECHR, Article 2 of which protects ‘freedom of movement’. Had it done so, it is less clear that the Strasbourg Court would have found the ‘kettling’ measures in the Austin case to be compliant with the Convention. The second related issue concerns the permitted purposes of containment. In Mengesha v Commissioner of Police for the Metropolis (2013) those leaving the containment were required by the police to give their details and to be filmed as a condition of their being released. In finding this unlawful, Moses LJ ruled that: Containment is only permitted where a breach of the peace is taking place or is reasonably thought to be imminent. It is a method of last resort where other possible steps to prevent a breach of the peace would be ineffective … and it must be proportionate … It is clear,

204

Michael Hamilton

therefore, that containment is not permissible for some purpose other than to prevent a breach of the peace which is taking place or reasonably thought to be imminent.

Powers to Impose Fixed Penalty Notices for Disorder (PNDs) Such powers were introduced in Northern Ireland in 2012 by Part 6 of the Justice Act (NI) 2011. They are intended for use against first-time or non-habitual offenders over the age of 18, and can be issued only for certain offences including disorderly behaviour in a public place and behaviour likely to cause a breach of the peace (both under art 18(1) of the Public Order (NI) Order 1987), and resisting, obstructing or impeding a constable (under s 66(1) of the Police (NI) Act 1998). The fixed penalty for each of these offences is currently £80 which must be paid within 28 days. For other offences for which penalty notices may be issued, see Schedule 4 to the Justice Act (NI) 2011. Anyone to whom a penalty notice is given may ask instead to be tried for the alleged offence. Failure to pay the penalty may result in enforcement proceedings for an amount equal to one-and-a-half times that of the original penalty.

Powers to Require the Surrender of, and to Stop and Search for, Intoxicating Liquor As noted above, section 13 of the Public Processions (NI) Act 1998 permits the police to confiscate alcohol being carried by anyone in the vicinity of a public procession. Under section 13, a constable in uniform may also stop a passenger vehicle and search the vehicle and any person in the vehicle, if he or she has reasonable grounds to suspect that intoxicating liquor is being carried in the vehicle and that the vehicle is being used for the principal purpose of carrying passengers to the vicinity of a public procession. District councils may also specify as ‘designated public places’ any areas which have been associated with alcohol-related disorder, nuisance or annoyance (art 70 of the Criminal Justice (NI) Order 2008). Under article 68 of the 2008 Order, if a constable reasonably believes that a person has been consuming (or intends to consume) intoxicating liquor in a ‘designated public place’, the constable may require the person concerned not to do so and to surrender anything in his or her possession which the constable reasonably believes to be intoxicating liquor (or a container for it).

Powers to Close Roads A police constable may close a road, divert traffic away from a road, or prohibit the exercise of a right of way if he or she considers this to be immediately

Processions, Protests and Other Meetings

205

necessary for the preservation of the peace or the maintenance of order (art 12 of the Policing (Miscellaneous Provisions) (NI) Order 2007). A person commits an offence if he or she interferes with the exercise of this power or with any apparatus or equipment used in implementing such closures or restrictions. A person guilty of such an offence is liable to a maximum penalty of six months’ imprisonment and a fine of £5,000. A statutory defence is available where persons charged can show a reasonable excuse for interference with any such apparatus or equipment. A soldier on duty may make an order under section 30 of the Justice and Security (NI) Act 2007 for an immediate road closure where it is considered ‘immediately necessary for the preservation of the peace or the maintenance of order’. The Secretary of State may also direct by order that a specified road be closed for the preservation of peace or maintenance of order (s 32 of the 2007 Act). The PSNI Service Procedure SP 40/2008 provides ‘guidance in circumstances that necessitate the closure of roads or seizure of land in response to an immediate or prolonged terrorist or public order threat’ (see www.psni.police.uk/ service_procedure_4008.pdf and Chapter 3).

Taking Possession of Land for the Preservation of the Peace Under section 29 of the Justice and Security (NI) Act 2007, where the Secretary of State considers it necessary for the preservation of the peace or the maintenance of order, he or she may authorise a person to take possession of land, carry out works on such land, or take any other action which interferes with a public right or private right of property. The Department of Justice has entered an agency arrangement with the Secretary of State (under s 28 of the Northern Ireland Act 1998) under which these functions may be exercised by the Department, provided that such exercise does not affect any excepted or reserved matters other than incidentally. In relation to the G8 summit in Fermanagh in June 2013, Robert Whalley (the then Independent Reviewer of powers exercised under the Justice and Security (NI) Act 2007) reported that: The PSNI told me that they were reluctant to use the section 29 powers during the G8. In cases where land was needed, PSNI approached landowners and sought their consent through licences. While this may have involved some higher upfront costs in the form of rental payments, it avoided the use of coercive powers and potential litigation and uncertainty. That approach demonstrates good practice in its engagement with the community and in searching for the least intrusive power.

Powers to Stop and Search in Anticipation of Violence Under article 23B 1987 Order (inserted by s 96 of the Anti-terrorism, Crime and Security Act 2001), if a senior police officer reasonably believes that incidents involving serious violence may take place in a locality, he or she may issue an

206

Michael Hamilton

authorisation which enables the police to stop and search pedestrians and vehicles for offensive weapons or dangerous instruments and to seize any such instruments.

Powers to Require the Removal of Masks Where authorised for a specified period of less than 24 hours in any place, article 23A of the 1987 Order (as inserted by s 95 of the Anti-terrorism, Crime and Security Act 2001) empowers a police officer to request the removal (or seizure) of items that they reasonably believe are being worn wholly or mainly to conceal one’s identity (and refusal to remove the item is an offence with a maximum penalty of one month’s imprisonment and a fine not exceeding £1,000). A guidance leaflet subsequently issued by the police in Northern Ireland advises that: ‘You should not conceal your identity by covering your face.’ But in fact the law does permit a person to conceal their identity by covering their face: what it prohibits is someone covering their face to conceal their identity. The leaflet (Police Advice on Protest) is available at: twitter.com/PSNIG8/status/346910696656748544.

Useful Contacts Parades Commission of Northern Ireland 15 Bedford Street Belfast BT2 7EL tel: 028 9089 5900 www.paradescommission.org

9 Freedom of Expression RORY O’CONNELL AND PAUL MAGEEAN*

The right to freedom of opinion and expression is one of the cornerstones of a properly functioning democratic society, as well as being essential to personal autonomy. Freedom of expression is frequently in the news in Northern Ireland, whether it be disputes about the display of flags, the Attorney General seeking to use the offence of ‘scandalising the court’ against a former Secretary of State, or a local councillor being charged in relation to an offensive tweet under the Communications Act 2003. Freedom of expression has featured in all of the key international and regional human rights instruments. Article 19 of the Universal Declaration of Human Rights (UDHR) 1948, for example, states that: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Of course, the UDHR is not binding in UK domestic law. The UN International Covenant on Civil and Political Rights (ICCPR) 1966 is also not binding in domestic law, although it does bind the UK as a matter of international law. Article 19 of the ICCPR enshrines freedom of expression and the ICCPR’s Human Rights Committee has provided an extensive interpretation of this in its General Comment 34 issued in 2011. The most relevant international instrument, however, is the Council of Europe’s European Convention on Human Rights (ECHR), Article 10 of which states that: (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television and radio. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or * Much of this chapter still derives from the equivalent chapter in the third edition of this handbook by Steve McBride.

208

Rory O’Connell and Paul Mageean crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 10 is now part of UK domestic law, by virtue of the Human Rights Act 1998. Article 10 is a classic example of a qualified right, with a two-paragraph structure: the right is set out in broad terms in the first paragraph, but it is subject to the possibility that restrictions on the right may be justified under the second paragraph. This is important because the right to freedom of expression frequently comes into tension with other rights and public interests. Article 10(1) generally protects most expression, but not equally. The European Court of Human Rights (ECtHR) supports the view that there is a hierarchy of types of expression. Interference with political expression calls for a very compelling justification, interference with artistic or religious expression provokes a less intense scrutiny, while interference with commercial expression requires a more modest scrutiny again. Some ‘expression’ may not be regarded as the sort of expression protected by Article 10(1) at all. For instance, extreme racist speech may be excluded from protection by reason of Article 17 ECHR (abuse of rights). For the most part, the term ‘expression’ is interpreted broadly in European human rights law. It includes symbolic expression (eg hanging dirty laundry outside Parliament: Tatár and Fáber v Hungary, 2012).The ECtHR stresses that it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. Handyside v UK, 1979

Due to the broad interpretation of Article 10(1) most Article 10 cases are concerned with Article 10(2), that is, whether a limitation on free expression is prescribed by law and can be justified as being necessary in a democratic society to protect a legitimate public interest. While much attention is paid to Article 10 ECHR, the EU is also increasingly involved in human rights protection. The EU Charter of Fundamental Rights contains an article on freedom of expression which explicitly includes reference to the ‘freedom and pluralism of the media’ (Article 11). In addition, EU secondary legislation on topics such as intellectual property, e-commerce and broadcasting also impact on freedom of expression.

Criminal Offences Incitement It is an offence under judge-made law to incite another person, whether by threats or encouragement, to commit any criminal offence. The incitement can be by

Freedom of Expression

209

words or conduct. There must be an intention that the other person commit the offence, but it is irrelevant whether or not the offence is actually committed. There is a specific statutory prohibition on inciting terrorism abroad in sections 59–61 of the Terrorism Act 2000.

Conspiracy It is an offence under article 9 of the Criminal Attempts and Conspiracy (NI) Order 1983 to agree with any person to commit any criminal offence. Conspiracy is committed as soon as there is such an agreement; it need not be formal, explicit or detailed.

Threats A threat to kill someone, communicated to that person or another, is a criminal offence, carrying a sentence of up to 10 years’ imprisonment under the Offences Against the Person Act 1861, section 16. It is also a crime to threaten without lawful excuse to damage or destroy the property of another (Criminal Damage (NI) Order 1977). Article 6 of the Protection from Harassment (NI) Order 1997 creates an offence of ‘putting people in fear of violence’, punishable by up to seven years’ imprisonment.

Intimidation and Harassment Section 1 of the Protection of the Person and Property Act (NI) 1969 provides that a person is guilty of an offence if he or she unlawfully causes, by force, threats, or menaces or in any way whatsoever, any other person (a) to leave any place where that person is for the time being resident or in occupation; or (b) to leave his employment; or (c) to terminate the services or employment of any person; or (d) to do or refrain from doing any act.

There is a penalty of up to five years’ imprisonment for such unlawful intimidation. The Protection from Harassment (NI) Order 1997 prohibits pursuing a ‘course of conduct’ which constitutes harassment, and ‘course of conduct’ is defined to include speech (art 2). There is a maximum penalty of two years’ imprisonment. The Order also provides for civil remedies such as damages or injunctions.

Incitement to Hatred Several international human rights instruments require the punishment of certain forms of expression. These include the dissemination of racist ideas

210

Rory O’Connell and Paul Mageean

and hatred under Article 4 of the UN Convention on the Elimination of Racial Discrimination 1966 and propaganda for war and advocacy of national, racial and religious hatred under Article 20 of the ICCPR 1966. The UK has entered reservations to both these articles, and during the 2012 Universal Periodic Review process at the UN’s Human Rights Council the UK indicated that it intended to retain the reservations. The ECHR does not contain such a clause but the ECtHR has made it clear that legislation punishing hate speech can be compatible with the Convention. It has further indicated that Article 8 ECHR may require the state to protect persons from racist stereotyping (Aksu v Turkey, 2012). Incitement to hatred legislation in Northern Ireland dates back to the Prevention of Incitement to Hatred Act (NI) 1970; the current position is contained in the Public Order (NI) Order 1987. Article 9 of the Public Order (NI) Order 1987 (as amended by the Criminal Justice (No 2) (NI) Order 2004) makes it an offence to use or display threatening, abusive or insulting words or behaviour, with intent to stir up hatred or fear or where such fear or hatred is likely to be stirred up. The fear or hatred must be directed against a group of persons defined by religious belief, sexual orientation, disability, colour, race, nationality (including citizenship) or ethnic or national origins. It is not an offence to use such words or behaviour in a private dwelling, provided that the person concerned has no reason to suppose that the words or behaviour will be seen or heard outside. It is similarly an offence under articles 10 and 11 of the Public Order (NI) Order 1987 to publish, distribute, play or show written or taped material which is threatening, abusive or insulting, with the intention of stirring up fear or hatred or where such fear or hatred is likely to be aroused. Article 12 covers broadcasting. It is an offence under article 13 to possess such material with a view to publishing, displaying or distributing it. A Northern Ireland Human Rights Commission report in 2013 indicated that criminal justice agency staff were unclear about the scope of these provisions; furthermore the Commission expressed concern that that there was no punishment for organisations which promoted or incited racial hatred (Racist Hate Crime: Human Rights and the Criminal Justice System in Northern Ireland, page 45). Section 37 of the Justice Act (NI) 2011 deals with chanting at certain sporting events—‘regulated matches’—and proscribes sectarian or indecent chanting or chanting which is threatening or abusive on grounds of colour, race, nationality (including citizenship), ethnic or national origins, religious belief, sexual orientation or disability. The Northern Ireland Human Rights Commission has expressed concern that ‘indecent’ is too vague a standard to be human rights compliant.

Poison Pen Letters The Malicious Communications (NI) Order 1988 makes it an offence to send or deliver articles with the intention of causing distress or anxiety (see also section 127 of the Communications Act 2003 discussed at page 222 below).

Freedom of Expression

211

Bomb Hoaxes It is an offence under article 3 of the Criminal Law (Amendment) (NI) Order 1977 intentionally to cause or communicate a false bomb warning. The maximum penalty is seven years’ imprisonment.

Support for Proscribed Organisations It is an offence under section 12 of the Terrorism Act 2000 to invite support for a proscribed organisation, to manage, arrange or speak at a meeting which the person knows is to support a proscribed organisation, further the activities of such an organisation, or to be addressed by a person who belongs to (or professes to belong to) a proscribed organisation. Section 13 of the Terrorism Act 2000 makes it an offence to wear an item of clothing or to wear, carry or display an article which gives rise to a reasonable suspicion that the person is a member or supporter of a proscribed organisation. The Terrorism Act 2006, in section 1(3), introduces the offence of ‘encouraging’ terrorism, which can be committed through the ‘glorification’ of terrorist acts. The ICCPR’s Human Rights Committee suggested in its 2008 concluding observations on the UK that this provision should be amended to avoid a disproportionate interference with freedom of expression.

Public Order Offences The Public Order (NI) Order 1987 prohibits the use of ‘threatening, abusive or insulting words or behaviour’ or the displaying of anything which is intended to cause a breach of peace or is likely to cause such a breach (art 19). These are dealt with in more detail in Chapter 8.

Sedition The common law offence of seditious libel was abolished by the Coroners and Justice Act 2009, section 73. The Treason Felony Act 1848 is still on the statute books and its text would appear to encompass serious limits on political expression. However, the House of Lords has indicated that the Human Rights Act 1998 limits the interpretation of the words in the Treason Felony Act 1848 so as to preclude it being used to silence peaceful political advocacy, such as abolition of the monarchy: R (Rusbridger) v Attorney General (2003).

212

Rory O’Connell and Paul Mageean

Incitement to Disaffection The Incitement to Disaffection Act 1934 makes it an offence punishable by two years’ imprisonment to endeavour to seduce any member of the armed forces from his or her duty or allegiance to the Crown, while the Mutiny Act 1797 makes it an offence punishable by life imprisonment to incite any member of the armed forces to mutiny or commit traitorous acts. The 1934 Act also criminalises possession of a document inciting disaffection with the intention of using it for that purpose. When Pat Arrowsmith was convicted of inciting disaffection amongst British soldiers who might have been required to serve in Northern Ireland, she took her case to the European Commission of Human Rights claiming a breach of her right to freedom of expression under Article 10 ECHR, but she lost her case (Arrowsmith v UK, 1978).

Communication Information about Members of the Security Forces Section 58A of the Terrorism Act 2000 makes it an offence to gather, publish or communicate any information likely to be useful in an act of terrorism about an individual in the armed forces, intelligence services or police. It is a defence to provide a ‘reasonable excuse’ for such activity. Freedom of expression will be relevant in determining what constitutes a reasonable excuse (see Lahtonen v Finland, 2012).

Flags and Emblems The display of flags and other emblems has often given rise to disputes in Northern Ireland. There is no overarching legislation covering public and private displays of flags and other emblems. In 2013 the Northern Ireland Human Rights Commission produced a useful report on the topic. Historically, the Flags and Emblems (Display) Act (NI) 1954 conferred specially protected status for displays of the Union flag. The Act allowed police officers to seize other flags and emblems where their display might occasion a breach of the peace. This 1954 Act was repealed by the Public Order (NI) Order 1987. The Flags (NI) Order 2000 allows the Secretary of State to make regulations regarding the flying of flags on government buildings; the Flags Regulations (NI) 2000 provides for the flying of the Union flag on a certain number of designated days. The period 2012–13 saw considerable disagreements over the flying of flags on public buildings notably those used by Belfast City Council. It should be noted that public authorities cannot be considered rights-holders under the Human Rights Act 1998, that is, they cannot invoke freedom of expression

Freedom of Expression

213

or other rights to justify the flying of a flag. But private persons and organisations can invoke freedom of expression (and other) rights when displaying flags and other emblems either in public places or on private property. There is no legislation specifically regulating such activities, but they are subject to the general legal framework, for example, public order offences (see above and Chapter 8).

Defamation The law of defamation causes a great deal of difficulty for journalists and others making public comment. While the law on defamation exists to protect individuals’ reputations, it may also have the effect of chilling freedom of expression, especially for journalists. Defamation is essentially the publication of a statement about someone which is both untrue and likely to be damaging to his or her reputation. Publication simply means the communication of the statement to another person (other than the person defamed) and the statement need not be in words: a drawing or cartoon may suffice. Defamation may be either libel or slander. Libel is defamation in a permanent form, notably in printed form, but also including film, tape, television and theatre. Slander is defamation in non-permanent form, usually unrecorded speech. There is only one important difference between the two forms of defamation: for most forms of slander, but not for libel, there is a need for the person who has allegedly been defamed to prove that he or she has suffered some financial loss as a result. There are exceptions for slanderous words concerning a person’s competence in his or her trade or business, or suggesting that a woman is ‘unchaste’ or that a person has a contagious disease or has committed a criminal offence. In these cases financial loss need not be proved. Two particular aspects of suing for defamation discourage the making of such claims and encourage the settlement of those that are made. First, legal aid is not available either to take or to defend a defamation action. The ECtHR has ruled that in some exceptional cases the absence of legal aid in defamation cases will breach the Convention: Steel and Morris v UK (2005), the so-called ‘McLibel’ case because it involved things said about McDonald’s, the fast food corporation. Second, defamation is one of the very few civil issues which must be tried by a jury (unless both parties agree to trial by judge only). The jury (consisting of seven people in Northern Ireland) has to decide whether the claimant (ie the person bringing the action) has been defamed and, if so, the amount of damages to be awarded. The issues involved may be very complex, making for an uncertain outcome and a long and expensive trial. The amounts awarded by juries for defamation may vary from the colossal to the contemptuous (eg one penny in Albert Reynolds’ clash with The Sunday Times in 1999). The ECtHR has held that excessive damages might breach Article 10 ECHR: Tolstoy Miloslavsky v UK (1995); Steel and Morris v UK (2005). Defamation actions are usually a risky business for

214

Rory O’Connell and Paul Mageean

all concerned. Legal persons (ie companies) as well as natural persons can sue for defamation, but democratically elected local authorities cannot: Derbyshire County Council v Times Newspapers (1993), nor can political parties: Goldsmith v Bhoyrul (1997). The Defamation Act 1996, by section 2, established a procedure whereby the publisher of a defamatory statement can offer to publish a correction and apology and, if necessary, have damages set by a judge rather than by a jury. The Act also reduced the time limit for bringing an action to one year in most cases, and provided a summary procedure for dealing with some cases where there is no prospect of success or where no realistic defence can be offered. In 2011 Mr Justice Gillen issued a ‘Pre-Action Protocol in Defamation’ which sets out the procedures to be followed when beginning defamation claims in Northern Ireland. In 2013 a Defamation Act was passed significantly amending the law in England and Wales; it provides greater protection for freedom of expression, including a public interest defence (s 4). There had been consideration of a ‘legislative consent motion’ at the Northern Ireland Assembly to enable this new law to apply to Northern Ireland, but the Department of Finance and Personnel indicated that it was not feasible to obtain this. When pressed by an Assembly Committee as to why, the Department pleaded executive confidentiality. Mike Nesbitt MLA then planned to introduce a private member’s bill on the topic, but in November 2013 this was overtaken by the decision of the Minister for Finance to request the Northern Ireland Law Commission to examine the issue.

Proving Defamation A person who alleges defamation must show that the comments in question diminish his or her reputation in the eyes of ‘right-thinking members of society’. The judge must decide whether the statement is capable of bearing a defamatory meaning, but the jury must decide whether it actually does carry such a meaning and whether it could reasonably be taken to apply to the claimant. The intentions of the person making the statement are normally irrelevant. In most circumstances it will be no defence to say that no defamatory meaning was intended, or that the statement was not intended to be taken as referring to the plaintiff. Nor need the plaintiff show that anyone did in fact read such a meaning into the statement, or thought any less of the plaintiff because of it. It is enough that someone might have done. The court is entitled to consider innuendoes and hidden meanings, and it is not necessary for the defamation to be obvious to the general public: it is sufficient if some other person with particular knowledge is able to identify the plaintiff as the subject of a defamatory statement. A statement about a broad group, such as a racial grouping, will not normally be actionable, but a statement about a specific grouping or an unidentified member of such a grouping (such as a committee) will be actionable by any member of that group.

Freedom of Expression

215

Defences to Defamation It is a defence to prove that on the balance of probabilities the statement was true (this is known as the defence of ‘justification’). But it is not enough that the defendant believed that the statement was true, or had reasonable grounds for believing that it was true, or was merely repeating what he or she had been told by someone else. It is also a defence to prove that the statement was ‘fair comment’, that is, that it was the expression of an opinion held honestly and without malice by the defendant on a matter of public interest. The statement must be an expression of opinion, not of fact, and the facts on which it is based must be substantially correct. Matters of public interest include politics, books and plays, and the standards in a restaurant (see Convery v Irish News Ltd, 2008). The defence of ‘privilege’ exists so that people may be free, in appropriate circumstances, both public and private, to communicate without fear of being sued for defamation. It can be ‘absolute’ or ‘qualified’. ‘Absolute’ privilege covers statements made in Parliament, in parliamentary papers or in court, and extends to fair, accurate, and contemporaneous newspaper reports of judicial proceedings. The makers of such statements and reports cannot be sued for defamation. In a case before the ECtHR, A v UK (2002), the Court held that a woman’s rights under the ECHR had not been violated because she was not able to sue her MP for libel in relation to statements he had made about her in Parliament. The Court held that such privilege was justifiable and proportionate in a democratic society. More recently, the ECtHR has indicated that too excessive a claim of absolute privilege might breach the Convention: Ielo v Italy (2005). Section 50 of the Northern Ireland Act 1998 provides that as far as the law of defamation is concerned, absolute privilege attaches to statements made in Assembly proceedings or under the Assembly’s authority. This is a more limited protection for Assembly members than that offered by the Bill of Rights 1689, which provides that ‘freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’. ‘Qualified’ privilege, which means that the maker of a statement cannot be sued provided that the material is published without malice, attaches to a wide variety of other situations, including reports of parliamentary proceedings and non-contemporaneous reports of judicial proceedings. Fair and accurate reports of public meetings or meetings of a range of public or semi-public bodies including local authorities, and reports of the decisions of trade, professional, religious, educational and sporting bodies are protected by qualified privilege, provided that anyone aggrieved by such a report is given a reasonable right of reply. The House of Lords has held, overruling the Court of Appeal in Northern Ireland, that a press conference is a public meeting for these purposes: McCartan Turkington Breen v Times Newspaper (2000).

216

Rory O’Connell and Paul Mageean

Qualified privilege also covers situations where one person is under a moral or legal duty to give information and another to receive it. This might cover complaints to the police, to social workers or to an employer about an employee. The House of Lords has adopted the position that ‘qualified privilege’ attaches to responsible exercises of journalistic reporting on matters of public interest: Jameel v Wall Street Journal (2006). This is sometimes known as the ‘Reynolds’ defence because it was first recognised by the House of Lords in a libel action taken by the former Taoiseach, Albert Reynolds. Section 1 of the Defamation Act 1996 provides that anyone who may be associated with a defamatory statement, but is not the author or publisher of that statement—such as a printer, distributor or live broadcaster—has a complete defence provided that he or she took reasonable care and had no reasonable notice of any defamatory content.

Injunctions Anyone who anticipates that a defamatory statement is about to be published about him or her may apply for an injunction to prevent publication. The courts, however, acknowledge the importance of protecting free speech and will not normally grant such an injunction where the defences of justification or fair comment are likely to be pleaded. Section 12 of the Human Rights Act 1998 reinforces this position, as exemplified in Cream Holdings Ltd v Banerjee (2004).

Malicious Falsehood There may be occasions when people suffer damage through incorrect statements being made about them, even though those statements do not strike at their reputation and hence are not defamatory. For example, a professional person may lose business through an incorrect report that he or she has retired or gone on a long holiday. Anyone in such a position may be able to sue for malicious falsehood where it can be shown that the person making the statement acted from malicious or improper motives. In Kaye v Robertson (1991) an injured actor successfully sued a tabloid newspaper under this heading.

Criminal Libel Prior to the Coroners and Justice Act 2009, it was possible to be prosecuted for criminal libel, but section 73 of that Act decriminalised the common law offences of criminal libel, seditious libel, sedition, and obscene libel in England, Wales and Northern Ireland.

Freedom of Expression

217

Privacy While there is no specific cause of action for ‘breach of privacy’ in the law applicable anywhere in the UK, one of the most notable developments since the passing of the Human Rights Act 1998 has been the willingness of the courts to develop other causes of action—especially the remedy for breach of confidence— to protect privacy interests. These developments frequently involve limitations on freedom of expression. The ECtHR has provided general guidance on how to balance privacy and free expression rights in Axel Springer AG and Von Hannover (No 2) v Germany (2012). The House of Lords gave an example of how to strike this balance in a case involving the supermodel Naomi Campbell. A newspaper published an article about her attendance at a drugs clinic, with accompanying photographs. The majority of the House of Lords accepted that there was a free expression point here, in particular that a newspaper was entitled to publicise the fact that Ms Campbell had lied to the public about her use of drugs. However, there was no reason to publish photographs and reveal information about which clinic she was attending: Campbell v Mirror Group Newspapers (2004). Subsequently, Mirror Group Newspapers (MGN) complained to the ECtHR that its Article 10 rights had been violated. The Court ruled that the finding of a breach of confidence had not violated MGN’s rights, but that the order that MGN must pay the legal costs of the claimant including the ‘success fee’ component (amounting to more than 100 times the amount of compensation) was a breach of Article 10: MGN v UK (2011). Max Mosley won a case in the domestic courts involving disclosure of private sexual activity. He then took the case to the ECtHR and argued that journalists had a duty to inform the subjects of reports of forthcoming news reports. This specific claim was rejected: Mosley v UK (2011). The protection of privacy has also been embroiled in the debate about so-called ‘super-injunctions’, that is, injunctions which prohibit not merely disclosure of private information but also disclosure of the very existence of the injunction. This practice was the subject of a report produced in 2011 by Lord Neuberger, a senior judge in England and Wales. During the phone-hacking scandal of 2011, some members of the Westminster Parliament took advantage of their freedom of speech privileges under the Bill of Rights 1689 to disclose the identities of persons who had obtained such super-injunctions (given the more limited privilege in the Assembly, MLAs would not be protected from legal action if they did this). Northern Ireland’s courts have issued a small number of super-injunctions (four during the period 2007–11, two in 2011–12). A number of cases involving restrictions on freedom of expression to protect privacy and anonymity are concerned not so much with protecting the private lives of people but protecting their lives. In some cases, the disclosure of information may lead to threats to peoples’ lives and in such cases it is possible to

218

Rory O’Connell and Paul Mageean

seek restrictions on free expression: see Venables and Thompson v News Group Newspapers (2001), a case concerning the two boys who were convicted of the murder of the toddler Jamie Bulger in 1993.

Copyright Copyright law prevents the use of protected material without the copyright owner’s consent. Material protected may include original literary works (very broadly defined and including almost anything written down), artistic and musical works, photographs, films, sound and video recordings, and television and radio broadcasts. It is not a breach of copyright to make fair use of a copyrighted work for the purposes of criticism or reporting of current events, provided that the author of the work is properly acknowledged. Use of copyright material may also be justified where the public interest is best served by publication. Breach of copyright is not a crime, but it allows the copyright owner to sue for compensation. The Digital Economy Act 2010 contains provisions to protect copyright on the Internet, and assigns OFCOM a regulatory role in this regard (see below).

Television and Radio Broadcasting is not a devolved matter and so is regulated by UK-wide Acts: the Office of Communications Act 2002 and the Communications Act 2003. The BBC is subject to a slightly different regime from other broadcasters (see s 198 of the 2003 Act). The 2002 Act creates a regulatory agency—OFCOM—which sets standards of decency (s 319 of the 2003 Act). These include standards about ‘offensive and harmful material’, the protection of children, ensuring political impartiality, the prohibition of political advertising, the accuracy of news programmes, and so on. The courts seem to defer to the expertise of the regulatory bodies in the field of broadcasting. Most notably, in R (Pro Life Alliance) v BBC (2003), the House of Lords upheld a decision by the BBC to deny a political party the right to show footage of abortions during a party political broadcast, as it offended standards of taste and decency. The requirement of taste and decency in broadcasting was one set out in statute, and was a judgement parliament was entitled to make. Furthermore, Parliament had entrusted to broadcasters, and to the then Broadcasting Standards Commission, the task of deciding whether accepted standards had been breached. Judges were not in a position to second-guess them. The ECtHR has upheld broadcasting regulations but insists that they respect ECHR principles of proportionality: Informationsverein Lentia v Austria (1993).

Freedom of Expression

219

Broadcasting Bans Section 336(5) of the Communications Act 2003 allows the Secretary of State to require OFCOM to direct broadcasters not to broadcast such types of material as the Secretary of State designates; this replaces the power under previous Acts to adopt broadcasting bans of the type which affected several organisations and political parties in Northern Ireland between 1988 and 1994. Those earlier bans had been found by the European Commission of Human Rights not to breach Article 10, although it is not certain that the European Court of today would follow that view.

Newspapers and Periodicals Complaints against newspapers can be made to the Press Complaints Commission (PCC), which was set up in 1991. The PCC has published a code of practice covering issues such as accuracy, the right to reply, invasion of privacy, harassment and misrepresentation, but its real powers are very limited and essentially the code of practice relies on self-regulation. The PCC does not provide financial compensation for complainants. It tries instead to find an amicable agreement between the parties involved or, in other cases, provides critical adjudications in the resolution of complaints. The effectiveness of the PCC has been the subject of critical comment in the press scandal leading to the closure of the News of the World in 2011. As a result, the Leveson Inquiry was set up to address practices in the press and make recommendations affecting the future regulation of the media. Leveson proposed an independent board to exercise self-regulation, but also wanted this board to be given recognition by legislation. Prime Minister Cameron rejected the recommendation of legislation and instead endorsed a Royal Charter on Self-Regulation of the Press. Signed by the Queen in October 2013, this is likely to be fully implemented only after the 2015 general election.

Threats to Journalists In 2013 the Northern Ireland Human Rights Commission reported that journalists had been attacked, and in the same year the National Union of Journalists condemned death threats against Northern Irish journalists. In the past, other journalists have been threatened or even killed: Martin O’Hagan was killed by the Loyalist Volunteer Force in 2001.

Advertising Complaints about advertisements may be made to the Advertising Standards Authority (ASA). This is an independent body sponsored by the advertising

220

Rory O’Connell and Paul Mageean

industry itself. It has published a Code of Advertising Practice, among the requirements of which are that advertisements should be legal, decent, honest and truthful. The ASA rules on complaints and in extreme cases may instruct subscribing media organisations not to accept an advertisement. The ECtHR is more deferential towards state regulation of professional expression and advertising as forms of commercial expression than it is towards regulation of political expression. It has also accepted as legitimate the ban in Ireland on religious advertising: Murphy v Ireland (2004). However, some examples of professional expression and advertising may be contributions to public debate and so deserve protection: Open Door Counselling Ltd and the Dublin Well Woman Centre v Ireland (1992), a case in the ECtHR about the provision of information concerning abortion services.

Films and Videos The British Board of Film Classification (BBFC) censors and classifies films and video tapes. In respect of video tapes it has statutory powers under the Video Recordings Act 1984, which allows fines for selling or distributing videos that have not obtained a Board classification. Most local authorities, which have a licensing role in respect of cinemas in their areas (Cinemas (NI) Order 1991), make it a licensing requirement that no film can be shown which does not have a BBFC certificate, but they still have the right to ban films which do have a classification. Local authority licensing requirements do not apply to private cinema clubs.

The Internet Attempting to impose restrictions on what is on the Internet is difficult, particularly because many Internet Service Providers (ISPs) are outside the UK. In spite of the technical problems, governments are increasingly interested in subjecting the Internet to restrictions. The reasons for this may be legitimate, for example, tackling child pornography and hate speech. Indeed the ECtHR requires an effective legal regulation of the Internet to protect Convention rights: KL v Finland (2008). However, some governments may be just as interested in restricting criticism of the government. The Digital Economy Act 2010 introduces a degree of regulation. Section 1 amends the Communications Act 2003 and provides that OFCOM has a role in producing reports on the state of the UK’s communications systems. There is a specific power for OFCOM to be asked to report on the use and misuse of internet

Freedom of Expression

221

domain names. The 2010 Act also amends the obligation on OFCOM to report on public service broadcasters, extending the obligation to cover internet material provided by such broadcasters. The Regulation of Investigatory Powers Act 2000 gives the security services extensive powers not only to intercept email communications but also to gain access to details of Internet access by a particular user, including sites visited and chat rooms used. Human rights groups, including Amnesty International, have expressed the view that these powers are excessive and not subject to sufficient judicial scrutiny. The ECtHR has accepted that it is lawful to require a newspaper to publish a qualification to a defamatory article hosted on its internet archive: Times Newspapers v UK (2009).

Obscenity In England and Wales the judge-made law on obscenity was largely superseded by the Obscene Publications Act 1959, but that legislation has never been extended to Northern Ireland. In Northern Ireland the common law traditionally prohibited the publication of obscenity as ‘an obscene libel’. The Coroners and Justice Act 2009, by section 73, decriminalised the common law offences of criminal libel, seditious libel, sedition and obscene libel in England and Wales and Northern Ireland. Despite this abolition, the case law on obscenity is still relevant as there remain some specific statutory mentions of ‘obscene’ material (see below). The common law test of obscenity is whether the material in question has a tendency to ‘deprave or corrupt’ those who are likely to see it. Having a tendency to ‘deprave or corrupt’ means something which is more than merely being shocking or offensive. Although obscenity is normally taken to apply to pornographic matter it can cover other material as well, such as publications advocating drugtaking or glorifying violence. The Criminal Justice and Immigration Act 2008, by section 63, makes it an offence to possess any ‘extreme pornographic image’. The section offers a definition of ‘extreme image’; there are also various defences provided for in the Act.

Indecency A variety of statutes and local by-laws deal with indecent behaviour, publication or display. ‘Indecent’ lacks any clear legal definition but would seem to include anything offensive to the standards of ordinary reasonable people, though lacking the element of depravity necessary for obscenity.

222

Rory O’Connell and Paul Mageean

The customs and excise authorities have wide powers to seize indecent or obscene material brought into the UK, though the effect of a ruling by the European Court of Justice has been to restrict these powers to material which would be deemed obscene rather than merely indecent. The Postal Services Act 2000, by section 85, makes it an offence to send any indecent or obscene article through the post, while the Unsolicited Goods and Services (NI) Order 1976, by article 7, prohibits the posting of unsolicited sexual publications. The Communications Act 2003, by section 127, criminalises the use of a public electronic telecommunications service to send messages which are grossly offensive, indecent, obscene or menacing; this includes telephone calls (considered in DPP v Collins, 2006, where racially offensive terms were used). In 2013, a Democratic Unionist Party (DUP) councillor was accused of committing an offence under section 127 of the Communications Act 2003 for sending a grossly offensive tweet; charges were subsequently withdrawn. The Protection of Children (NI) Order 1978 makes it an offence to take, distribute or possess (with a view to distribution) indecent photographs or pseudophotographs of children. The Coroners and Justice Act 2009, section 62, makes it an offence to possess a prohibited image of a child; a prohibited image is one which is pornographic, an image of genitalia or of sexual activity, and grossly offensive, disgusting or obscene.

Blasphemy The judge-made law on blasphemy once made it a crime to deny the truth of the Christian religion. In its modern form, however, blasphemy simply covers comment which amounts to an insulting or abusive attack on the Christian religion. The intention of the person making or publishing the comment is irrelevant; it is only necessary to show that he or she is responsible for comments which the court deems to be sufficiently offensive. The offence remains extremely vague and unsatisfactory. As has been confirmed by a case arising out of the Salman Rushdie affair (Ex parte Choudhury, 1990), it does not protect non-Christian religions, and there is even doubt as to whether it extends beyond protecting the doctrines of the Church of England. In England and Wales the crime of blasphemy was abolished by the Criminal Justice and Immigration Act 2008. Parliament debated a proposal by Lord Lester to extend the abolition to Northern Ireland, but it concluded that the matter should be left to the Northern Ireland Assembly. In the Republic of Ireland, the Supreme Court ruled that the traditional common law of blasphemy was unconstitutional: Corway v Independent Newspapers (1999), but the Irish legislature reintroduced the offence in a redefined form in the Defamation Act 2009.

Freedom of Expression

223

Contempt of Court The law on contempt of court seeks to protect the fair and impartial administration of justice. It is particularly concerned with preventing juries from being exposed to prejudicial comment. The modern law is largely to be found in the Contempt of Court Act 1981, which was passed after criticism of existing UK law by the ECtHR in The Sunday Times v UK (1979), the thalidomide case. The 1981 Act makes it an offence to publish anything which creates a substantial risk that the course of justice in any particular case will be substantially impeded or prejudiced. This covers any speech, writing or broadcast addressed to the public or any section of it, and the rule applies when any proceedings are ‘active’ (ie sub judice, to use the old phrase). Criminal proceedings are active from the time when someone is arrested or an arrest warrant or a summons has been issued. Civil proceedings are active from the time when a date is set for trial, not from the issue of a writ. Appeals are active from the time when leave to appeal is applied for or notice of appeal lodged. Liability is ‘strict’, that is, the intention of the publisher is not normally relevant. It has been held, however, that the 1981 Act has not affected the common law position concerning material published with the intention of prejudicing or interfering with court proceedings: it can still be contempt to publish such material, even when no proceedings are active. Publication of an accused’s criminal record or comment on his or her character or that of a witness, or linking an accused to other offences, would probably constitute a substantial risk of prejudice, as would publication of a photograph of an accused where identification may be an issue. But fair, accurate and contemporaneous reports of proceedings in court cannot be contempt (s 4(1) of the 1981 Act) and discussion in good faith of public affairs or matters of public interest is not contempt if any risk of prejudice to particular proceedings is only incidental to the discussion. There is also some disagreement as to whether the sub judice rule applies to those cases which would be dealt with in juryless courts. Any attempt to bribe, intimidate or otherwise improperly influence witnesses, jurors or judges would be contempt of court. Abusive criticism of judges, or accusations of prejudice or partiality against them, may amount to the old form of contempt known as ‘scandalising the court’, although the Court of Appeal has said that criticism in good faith of a judgment, however vigorous, should not constitute contempt. In an extraordinary turn of events in 2012, the Attorney General of Northern Ireland initiated a case against former Secretary of State Peter Hain for ‘scandalising the court’. The charge was based on Mr Hain’s criticism, in his memoirs, of a judicial decision taken during his time as Secretary of State. The case was subsequently dropped after Mr Hain agreed to write an addendum for the paperback edition of the book. The offence of scandalising the court was then abolished by the Criminal Justice Act (NI) 2013, section 12.

224

Rory O’Connell and Paul Mageean

Section 8 of the 1981 Act completely outlaws any approaches to jurors, however innocuous. It declares it to be contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury during their deliberations. The compatibility of this provision with Convention rights has been upheld by the House of Lords (Attorney General v Scotcher, 2005) and the ECtHR (Seckerson v UK, 2012). The rule makes it difficult to conduct effective research into how juries operate in practice. Contempt of court also covers disorderly behaviour in court, failure to comply with court orders or to observe an undertaking given to the court, and obstructing court officers in the course of their duties. It was held in the course of the ‘Spycatcher’ litigation that a newspaper could be in contempt of court for publishing material which was the subject of injunctions preventing publication by other newspapers. In Harman v Secretary of State for the Home Department (1983) a solicitor allowed a journalist to see some documents concerning prisons which the court had ordered the Home Office to disclose to the court. The House of Lords decided that this behaviour was contempt, but when the solicitor took the case to the European Commission of Human Rights the government agreed to settle it. Under the terms of this settlement the law was changed so that it is no longer contempt to disclose documents already produced in court pursuant to a court order. Despite this, in McShane v UK (2002) the RUC lodged a formal complaint with the Law Society of Northern Ireland against a solicitor whom the RUC alleged had disclosed to a third party (so that this party could submit them to the ECtHR) documents to which she had access by way of preinquest disclosure. The ECtHR ruled that this was a breach of Article 34 of the Convention, which guarantees free and unhindered access to the Convention system.

Other Restrictions on Court Reporting Most legal proceedings in Northern Ireland take place in open court, and can be reported by the press. The press and public can be excluded from prosecutions taken under official secrets legislation and in a number of circumstances where publicity would defeat the interests of justice, such as blackmail cases. Similarly, the Contempt of Court Act 1981 allows courts, in exceptional circumstances, to order that the names of parties or witnesses, or other relevant information, must not be mentioned in open court or the press. When making such decisions, courts have to balance the relevant public interest against Article 10 freedom of expression interests (2009). Exceptionally, a court may issue an injunction to restrain a publication that would jeopardise a trial: Attorney General v Random House (2009). This case concerned a book which had been written by a police officer about terrorist

Freedom of Expression

225

investigations and included discussion of a plot to blow up airlines; the persons accused of these crimes were being tried at the time. There are a number of other circumstances where press reporting of court proceedings is subject to limitations. The names of rape victims are protected from publication (Sexual Offences (Amendment) Act 1992, as amended by the Youth and Criminal Evidence Act 1999, Sch 2). Only very limited factual information can be published about committal proceedings in magistrates’ courts (which precede criminal trials), unless the defendant asks for reporting restrictions to be lifted. In a jury trial the press cannot report legal arguments heard in the absence of the jury. Juvenile court proceedings can be reported on condition that the identity of the defendant or witnesses is not revealed (Criminal Justice (Children) (NI) Order 1998, art 22). Most matrimonial proceedings are held in private and are subject to substantial reporting restrictions. Persons subject to controls under the Terrorism (UN Measures) Order 2006 may benefit from confidentiality in court proceedings, but the courts will consider applications to set aside such confidentiality on the basis of Article 10 ECHR: Re Guardian News and Media Ltd (2010).

Journalists’ Sources The Contempt of Court Act 1981 provides a measure of protection for journalists’ sources. Section 10 says that a court can order a journalist or editor to disclose a source only where such disclosure is necessary in the interests of justice or of national security, or for the prevention of disorder or crime. In Ashworth Hospital Authority v MGN Ltd (2002) the House of Lords held that the Daily Mirror could be required to disclose the source of its information about the private medical records of the Moors murderer Ian Brady. The Lords said it was enough if the source had been ‘involved’ in wrongdoing, but they stressed that disclosure should be ordered only exceptionally and that there had to be both a pressing social need and a legitimate aim which was being proportionately pursued. The question is always one of balancing the different legitimate interests: Financial Times v UK (2009). The police may in some circumstances seize documents and other journalistic material. Under the Police and Criminal Evidence (NI) Order 1989 they may obtain a court order granting access to such material where they can satisfy a judge that the necessary conditions have been met (see Chapter 3). They may also be able to obtain such material, including films and photographs, under section 39 of the Terrorism Act 2000 (see also s 19 and Sch 5), which requires the disclosure of any information which may be of assistance in preventing terrorism. In a case involving journalist Suzanne Breen’s refusal to disclose her sources relating to the Real IRA’s killing of two soldiers, a county court refused to order her to disclose her sources because of the threat to her life: Re Application by DI Galloway (2009).

226

Rory O’Connell and Paul Mageean

Official Secrets Official secrecy has often been the subject of very considerable controversy. Section 1 of the Official Secrets Act 1911, which is still in force, makes what would commonly be called spying an offence: it deals with collecting or revealing information likely to be useful to an enemy, for any purpose prejudicial to the safety or interests of the state. The Official Secrets Act 1989 essentially creates two kinds of offence: — It makes it an offence for any member or former member of the security services, or anyone associated with security or intelligence activities, to disclose any information about such activities. The Home Secretary may by notification make anyone who comes into contact with intelligence activities subject to this restriction. Journalists who assist or encourage such disclosure, or who publish such information with grounds for believing that it has been disclosed without permission, may be prosecuted as accomplices. — It is an offence to disclose other kinds of government information where damage is caused or likely to be caused by unauthorised disclosure. The categories of information covered include anything which would endanger UK interests abroad, prejudice the capabilities of the armed forces, or impede the work of the police. Confidential information obtained from another state or international organisation is also protected. Where information about intelligence, security, defence or international issues has been communicated to other governments or international organisations and has been leaked abroad, it is an offence to repeat it in the UK. Section 5 of the 1989 Act also makes it an offence for journalists or editors to publish information where they know it to be protected by the Act and have cause to believe that publication would be damaging to the national interest. The Act does not allow any defence of acting in the public interest: unauthorised disclosure, and in some cases publication, of protected information is a criminal offence even though it may expose criminal activities, corruption or serious government malpractice. The absence of such a public interest defence is a particular cause for concern, even though there was no such defence in the old Act of 1911, but it may be that scrutiny in the courts and the common sense of juries will tend to keep a check on any abuse of the 1989 provisions. David Shayler, a former employee of MI5 who disclosed information to the press detailing an alleged plot to murder Colonel Qaddafi of Libya, lost his appeal against being convicted for breaching the Act: R v Shayler (2002). Unauthorised disclosure of government information outside the areas specified in the Official Secrets Act 1989 is not a criminal offence, but it may well expose the culprit to internal disciplinary procedures. The government may also use the civil law to obtain injunctions against publication or to claim damages (eg for breach of confidence). Wrongdoers owe a duty to account for the profit they make out of their wrongdoing, but the Attorney General has no power to seize such money: Attorney General v Blake (2000).

Freedom of Expression

227

‘D notices’ The ‘D notice’ process is an informal system which acts as a restraint on press coverage of sensitive defence and security topics. The notices are issued by the Defence, Press and Broadcasting Committee, a body composed of officials from government departments concerned with national security and representatives of broadcasting organisations and the press. The Committee gives guidance on the publication of material which is sensitive on national security grounds, and from time to time issues notices warning that publication of certain stories may be harmful to national security. The system lacks legal force: the Committee cannot prevent publication and prior clearance from the Committee is no defence to prosecution under the Official Secrets Acts.

Counter-terrorism Powers The Terrorism Prevention and Investigation Measures Act 2011 replaces the Labour Government’s ‘control orders’ with ‘TPIMs’. These are subject to greater restrictions than the earlier control orders but they still allow for significant limitations on the liberty of individuals, including their freedom to communicate with others. Schedule 1, paragraphs 7 and 8, cover the use of electronic communication devices and association (including communication) with others.

Elections and Political Expression The Elected Authorities (NI) Act 1989 provides that any candidate for election to a district council or to the Northern Ireland Assembly (but not to the Westminster Parliament) must sign a declaration when submitting his or her nomination papers, and again, if elected, before taking his or her seat. The declaration states that the candidate will not express support for a proscribed organisation or for ‘acts of terrorism (that is to say, violence for political ends) connected with the affairs of Northern Ireland’. The declaration covers comments at public meetings or in circumstances where the person concerned can reasonably be expected to know that his or her comments will become public knowledge. The relevant test is whether the comments can reasonably be understood to express support or approval for an illegal organisation or for acts of terrorism. The Act states that a district council, or any member of that council or any elector for that council, may take legal proceedings in the High Court for a judicial determination that a member of that council is in breach of the declaration. If such a ruling is granted, that member will be disqualified from holding office and will not be permitted to stand again for election for a period of five years.

228

Rory O’Connell and Paul Mageean

The financing of political parties and the electoral process is subject to extensive regulation which may have free expression issues. The Political Parties, Elections and Referendums Act 2000 is the key Act here. Expenditure of monies for political leafleting is protected expression under Article 10. The ECtHR found that the UK’s strict rules on third-party expenditure during an election campaign breached Article 10: Bowman v UK (1998). The Bowman case was applied in a subsequent criminal prosecution so as to interpret legislation governing thirdparty expenditure in a Convention-compliant manner: R v Holding (2005). There is also the question of ‘political advertising’. Section 321 of the Communications Act 2003 continues the long-standing prohibition on political advertising, a ban which affects pressure groups as well as organised political parties. UK courts seem more willing than the ECtHR to tolerate limits on political advertising: R (Animal Defenders International) v Secretary of State for Culture Media and Sport (2008), a case about an advertisement objecting to the use of primates in scientific research. The ECtHR accepted (by nine votes to eight) that this provision is compatible with the Convention (Animal Defenders International v UK, 2013) The European Court has also held that a parliamentary oath of allegiance to the monarch is compatible with Article 10 (in McGuinness v UK, 1999), although an oath of allegiance to the gospels is not compatible (Buscarini v San Marino, 1999). Sinn Féin challenged the rule which denied them access to policy development grants, on the grounds that they did not have Members of Parliament who had taken the oath, but the challenge was rejected: Re Sinn Féin’s Application for Judicial Review (2003). The High Court of Northern Ireland has upheld limits on the political rights of civil servants, in a case where the applicant was supported by the Northern Ireland Human Rights Commission: Re McKinney’s Application for Judicial Review (2004).

Administrative Law One of the few Northern Ireland cases to be appealed all the way to the House of Lords was Belfast City Council v Miss Behavin’ Ltd (2007). The House of Lords held that Belfast City Council did not disproportionately limit a company’s freedom of expression rights when deciding that the appropriate number of sex shops in its jurisdiction was none. Individuals may be denied entry to the UK for reasons based on their expression, if it is judged that such expression might cause public order problems: R (Farrakhan) v Secretary of State for the Home Department (2002). Where, however, the person seeking entry is an EU national, any decision to deny entry will be very closely scrutinised to ensure that it is lawful and proportionate; on this basis the Asylum and Immigration Tribunal overturned a decision to deny the controversial Dutch politician, Geert Wilders, entry to the UK: Re GW (2009).

Freedom of Expression

229

Freedom of Information The ECtHR takes the position that it protects information only as an aspect of free expression and does not require public authorities to act transparently. Paradoxically, the Court has interpreted other articles of the ECHR as requiring the state to provide information, most notably under Article 8 in relation to environmental issues and threats to health. Recent cases suggest the Court’s position on Article 10 in this regard may be evolving: Társaság a Szabadságjogokért v Hungary (2009). Furthermore, in some cases the Court has applied Article 10 to protect ‘whistle-blowers’: Marchenko v Ukraine (2009). For further information on whistle-blowing see Chapter 23.

Freedom of Expression in Private Places The ECtHR has held that freedom of expression rights are protected in the workplace, though perhaps not to the same extent as elsewhere. When a public authority is the employer, the rights apply against the public authority; in other cases the state has a duty to protect persons from breaches of their rights by employers and others. Employer decisions to discipline or dismiss employees for exercising their free expression rights must therefore be shown to be justifiable, as indeed occurred in Pay v Lancashire Probation Service (2003), where a probation officer who in his spare time offered sado-masochistic services was held to have been legitimately sacked. A different question is the role of Article 10 when private actors invoke their property rights to exclude persons wishing to exercise their freedom of expression rights on property which, though private, is open to the public. This issue was raised in one case before the European Court, although ultimately it was found that there was no violation: Appleby v UK (2003), a case concerning the collection of signatures for a petition at a shopping centre.

Prisoners The freedom of expression rights of prisoners may be subject to limitations. For instance, a prison governor may prevent a prisoner from publishing a book about his crimes: R (Nilsen) v Full Sutton Prison Governor (2004). This issue is now covered by Part 7 of the Coroners and Justice Act 2009, which allows a court to make an ‘exploitation order’ in respect of memoirs by a convicted person requiring the convicted person to pay a sum of money to the relevant enforcement agency.

230

Rory O’Connell and Paul Mageean

More recently, the ECtHR upheld a ban on prisoners in Northern Ireland wearing ‘political or sectarian’ symbols outside of their prison cells; this was found to be a proportionate restriction in the interests of maintaining order: Donaldson v UK (2011). Nevertheless, prisoners’ freedom of expression rights are not extinguished. For instance, they have a right to have interviews with journalists in order to allege they are the victim of a miscarriage of justice: R v Secretary of State for the Home Department, ex parte Simms (2002). Such contacts with journalists may be subject to monitoring in order to protect a legitimate public interest such as national security: R (A) v Secretary of State for the Home Department (2003), a case concerning persons detained under the Anti-terrorism Crime and Security Act 2001.

Useful Contacts Article 19 ARTICLE 19 Headquarters Free Word Centre 60 Farringdon Road London EC1R 3GA Tel: +44 20 7324 2500 Email: [email protected] http://www.article19.org/ Campaign for Press and Broadcasting Freedom CPBF, 2nd Floor, Vi and Garner Smith House, 23 Orford Road, Walthamstow, London E17 9NL. tel: 07729 846146. e-mail: [email protected] http://www.cpbf.org.uk/ Independent Press Standards Organisation c/o Halton House 20/23 Holborn London EC1N 2JD tel: 0300 123 2220 email: [email protected] https://www.ipso.co.uk/IPSO/

Freedom of Expression Index on Censorship, 92–94 Tooley Street London SE1 2TH tel: 020 7260 2660 http://www.indexoncensorship.org/ National Union of Journalists Spencer House Spencer Row, Off Store Street Dublin 1 tel: 00 353 (0)1 8170340 email: [email protected] http://www.nuj.org.uk/home/ Reporters Without Borders International Secretariat Reporters sans frontières 47 rue vivienne 75002 Paris France tel: +33 1 44 83 84 84 http://en.rsf.org/

231

10 Rights to Access Information COLIN HARPER AND BRICE DICKSON

This chapter outlines the legal situation in Northern Ireland concerning the right to obtain information. In general, giving people access to information held by official bodies is important because such openness and transparency enable a democratic society to function through a genuinely informed public. If public authorities were allowed to operate in complete secrecy, there would be an increased danger of corruption and of decision-making which diverges from official policies and any democratic mandate. Access to official information empowers the public, non-governmental organisations and the media to play a full and active role in shaping law and policy and in scrutinising administration.

Human Rights Article 10 of the European Convention on Human Rights (ECHR) protects not just the right to freedom of expression, but also the right to receive information and ideas without interference by a public authority. But the right to (passively) receive information is not the same thing as the right to (actively) seek information and the European Court of Human Rights (ECtHR) has been slow to interpret Article 10 to include the latter. In Leander v Sweden (1987) the Court had held that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual. (para 74)

An example of how Article 10 has been used more recently to protect the right to receive information is the case of Open Door and Dublin Well Woman v Ireland (1993), where Ireland was held to have violated the Article by restricting the provision of information to Irish women about abortion facilities in other countries.

234

Colin Harper and Brice Dickson

Article 8 of the ECHR has sometimes been interpreted in a way which gives access to information. For example, in McGinley and Egan v UK (1998) the ECtHR held that ex-servicemen stationed on or near Christmas Island at the time of British nuclear tests there 40 years earlier were entitled to all relevant and appropriate information about the potential consequences of the tests (although on the facts the case was lost because the information was accessible but had not been applied for). Other developments in the jurisprudence of the ECtHR in this area indicate a move in its jurisprudence in favour of freedom of information. In Társaság a Szabadságjogokért v Hungary (2009) the issue under consideration by the Court was access to details of a complaint in connection with drugs policy by the Hungarian Civil Liberties Union. In that judgment the Court noted that: the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. It considers that the present case essentially concerns an interference—by virtue of the censorial power of an information monopoly—with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents. (para 36, citation omitted)

Whilst not yet holding that there is a positive obligation to facilitate access to official information, the Court has clearly established a negative obligation not to frustrate such access, at least in circumstances where there is a clear public interest. Unfortunately, in Kennedy v Information Commissioner (2014) the UK’s Supreme Court ruled that Article 10 of the ECHR does not confer a right to receive information from public authorities and that the direction of travel of recent decisions by Chambers of the ECtHR has not yet displaced the approach adopted by the Grand Chamber in Leander v Sweden (1987).

Freedom of Information Act 2000 General Right of Access to Information The Freedom of Information Act 2000 grants a general right of access to information held by public authorities. ‘Information’ which comes under the Act can be contained in printed documents (including drafts), computer files, letters, emails, photographs, and sound or video recordings. Any person making a request for information to a public authority is entitled: — to be informed by the public authority whether it holds information of the description specified in the request; and — if that is the case, to have that information communicated to him or her. Where a public authority reasonably requires further information in order to identify and locate the information requested and has informed the applicant

Rights to Access Information

235

of that requirement, the authority is not obliged to meet the above entitlement. Guidance on how to make a request is available on the website of the Information Commissioner’s Office. A public authority can refuse an entire request if: — it would cost too much (currently set at £450 for most public authorities, with staff time being charged at £25 per hour); — the request is vexatious; or — the request repeats a previous request from the same person.

Definition of ‘Public Authority’ Under the Act Bodies which count as ‘public authorities’ for the purposes of the Act are listed in Schedule 1, are designated as such by the Secretary of State under section 5, or are a publicly-owned company as defined by section 6. Information counts as being held by a public authority if it is held by the authority itself or it is held by another person on behalf of the authority (s 3(2)). ‘Public authorities’ in Northern Ireland include: — all government departments; — all ‘non-departmental public bodies’ (such as the Equality Commission for Northern Ireland or the Parades Commission); — all National Health Service bodies (including the Health and Social Care Board, Health and Social Care Trusts, GPs, pharmacists and dentists); — all schools, colleges and universities; and — the Police Service of Northern Ireland and the Northern Ireland Policing Board.

Not all bodies which receive public money count as a public authority, but the title may cover a charity or a private sector organisation which is carrying out a public function. If there is doubt as to whether a particular body is subject to the Freedom of Information Act, it is best to ask that body to confirm this. It is possible that a body is only covered by the Act for some of the information it holds; for instance, a doctor is only covered for information held in connection with their NHS work, not any private work. Members of Parliament, Members of the Northern Ireland Assembly and local councillors are not covered by the Act as individuals. However, the Act may cover information held in a private email account if that account was being used for official purposes, as this means that the information was being held on behalf of the public authority. The Security Service, Secret Intelligence Service and Government Communications HQ (GCHQ) are not subject to obligations to disclose information other than to a limited extent with respect to historical records. This exemption is not universally the case in other jurisdictions, such as the United States, Canada and New Zealand, where the security services are subject to freedom of information laws.

236

Colin Harper and Brice Dickson

Publication Schemes Article 19 of the Act imposes duties on every public authority to adopt and maintain a scheme which relates to the publication of information by the authority (which must be approved by the Commissioner), to publish information in accordance with its publication scheme, and from time to time to review its publication scheme (art 19(1)). The publication scheme must: — specify classes of information which the public authority publishes or intends to publish; — specify the manner in which information of each class is, or is intended to be, published; and — specify whether the material is, or is intended to be, available to the public free of charge or on payment (art 19(2)).

In adopting or reviewing its publication scheme, a public authority has to consider the public interest in allowing public access to information held by the authority and in the publication of reasons for decisions made by the authority.

Exemptions to the General Right of Access to Information There are two kinds of exemptions within the Act to the general right of access to information: — absolute exemptions; and — conditional exemptions. Absolute exemptions mean that there is no right of access to the information and it can be withheld. Conditional exemptions operate where the public interest in not disclosing the information (or confirming or denying it is held) outweighs the public interest in disclosing it (s 2(1)(a) and (b)). A valid exemption means that information can be withheld from the requester. This includes information as to whether the public authority holds the information specified in the request. It is possible for one potential source of information, such as an individual document, to only be partly covered by an exemption, or to be covered in whole or in part by multiple exemptions. The exemptions are listed in Part III of the Act and differ in their effect depending on the particular exemption. Exemptions that wholly exempt the information in their application include: — information accessible to the applicant by other means (s 21); — information supplied by, or relating to, bodies dealing with security matters (s 23); — information relating to court records (s 32); — parliamentary privilege (s 34);

Rights to Access Information

237

— information provided in confidence (s 41); and — information prohibited from disclosure by any other piece of legislation or enactment (s 44). Exemptions that are absolute only in part include: — information that would prejudice the effective conduct of public affairs (s 36); and — personal information (s 40). Exemptions requiring the application of a public interest test include: — — — — — — — —

information intended for future publication (s 22); national security (s 24); investigations and proceedings conducted by public authorities (s 30); formulation of government policy (s 35); communications with Her Majesty and honours (s 37); health and safety (s 38); environmental information (s 39); and legal professional privilege (s 42).

Exemptions requiring the application of a public interest test and/or a prejudice test include: — — — — — — —

defence (s 26); international relations (s 27); relations within the UK (s 28); the economy (s 29); law enforcement (s 31); audit functions (s 33); and commercial interests (s 43).

Further specific information is available on the website of the Information Commissioner’s Office on how each of the individual exemptions can validly be applied and what constitutes best practice in doing so.

The Information Commissioner The Information Commissioner’s Office is the UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals. It enforces and oversees the implementation of the Freedom of Information Act 2000 by promoting good practice, ruling on complaints, providing information to individuals and organisations and taking appropriate action when the law is broken.

238

Colin Harper and Brice Dickson

Under Part IV of the Freedom of Information Act 2000, the Information Commissioner has powers to enforce the Act, including making decisions about the compliance of a public authority with the Act. A complaint may be brought to the Information Commissioner’s Office on the basis that a public authority has failed to comply with the requirements of Part I of the Act. On receipt of an application for a decision, the Commissioner will make a decision unless: — — — —

the complaints procedure of the public authority has not been exhausted; there has been undue delay in applying for a decision; the application is frivolous or vexatious; or the application has been withdrawn or abandoned.

Should the Commissioner decide that a public authority has failed in meeting the requirements of the Act, a ‘decision notice’ can be issued which specifies the steps which the authority must take to comply with the Act and the time by which such steps must be taken. The Commissioner can also issue ‘enforcement notices’ which are similar to decision notices except that they do not have to relate to particular issues with an authority’s handling of a specific request. Appeals from enforcement notices, decision notices and information notices of the Information Commissioner’s Office are heard by the First-tier Tribunal (Information Rights), part of the General Regulatory Chamber (GRC).

Public Records Office The Public Records Office of Northern Ireland (PRONI) aims to identify, preserve and make available Northern Ireland’s unique archival heritage and community memory. It was established in 1923 as the archive for the province, and contains records of the Northern Ireland central and local government departments and the courts. A ‘public record’ generally includes any document created by an official source such as any Northern Ireland government or government department. The Public Records Act (NI) 1923 and the Disposal of Documents Order, (NI) 1925, places responsibility for the management of public records on the appropriate government department or public body. The selection of public records for preservation takes place in two stages: 10 years after a record was created, and 20 years after a record was created. At the first stage any records that are clearly worthless are destroyed, all others are kept for review at 20 years after their creation at which point it is easier to identify records which are likely to have enduring value. Access to records by members of the public is in general possible 30 years after a document has been created, but some records held by PRONI are potentially subject to the exemptions to disclosure contained in the Freedom of Information Act 2000.

Rights to Access Information

239

Discovery of Documents Parties to a court action can be compelled to disclose the existence and contents of certain documents, a process known as ‘discovery’. For county court actions, discovery is regulated by Order 15 of the County Court Rules (NI) 1981, while for High Court actions the relevant provision is Order 24 of the Rules of the Supreme Court (NI) 1980, as amended. A court order for discovery is required only if the parties do not volunteer the information themselves and the court needs to be convinced that production of the documents in question is necessary for disposing fairly of the case or for saving costs. In practice, discovery of documents is not ordered during applications for judicial review. Generally speaking, there is no power to order discovery against someone who is not a party to the proceedings. The correct procedure is to call that person as a witness to give oral testimony. But the House of Lords held in Norwich Pharmacal Co v Customs and Excise Commissioners (1974) that, where a person through no fault of his or her own gets mixed up in another person’s wrongdoing he or she may incur no personal liability in law but is under a duty to assist the victim of the wrongdoing by giving him or her full information. In a further decision, British Steel Corp v Granada Television Ltd (1980), the House of Lords stressed that an applicant’s interest in obtaining information so as to detect and punish wrongdoing must be shown obviously to outweigh the public interest in protecting the source and ensuring the free flow of information to the media. Moreover, no order can be issued against a stranger who is completely uninvolved in the suspected wrongdoing. In Ashworth Hospital Authority v MGN Ltd (2002), the House of Lords held that a newspaper could be forced to disclose its source for a story if it came by that story as a result of someone else’s wrongdoing; the wrongdoing in this case took the form of an employee at a secure hospital releasing the medical records of Ian Brady, one of the Moors murderers (see also Chapter 11, on the right to privacy). A further important provision is section 31 of the Administration of Justice Act 1970, which permits what is called ‘pre-trial’ discovery when a person who is likely to be a party to legal proceedings concerning injury or death can apply for an order of discovery against another likely party. The disclosure of documents might then enable the applicant to discover whether he or she has a case worth starting in the courts. Section 32 enables a claimant in a personal injury or fatal accident case to obtain discovery of, for instance, medical records. This provision is to be generously interpreted in the plaintiff ’s favour (see O’Sullivan v Herdmans Ltd, 1987). The ECtHR has ruled that if a court’s refusal to grant disclosure significantly disadvantages one party to proceedings this could be breach of Article 6 of the ECHR (De Haes and Gijsels v Belgium, 1998). There are two important limitations to the right to obtain discovery of documents: — the claim of legal professional privilege protects all confidential communications between a client and his or her lawyer, as well as some confidential communications between either of these people and a third party; and

240

Colin Harper and Brice Dickson

— public interest privilege allows the minister who is at the head of a relevant government department to contend that disclosure of the documents in question would be injurious to the public interest, either because of their contents or because of the class of documents to which they belong; in recent years the courts have made it clear that, if such a ‘public interest immunity’ claim is asserted by the government, judges can inspect the documents to see whether in fact the public interest does lie in their being kept secret.

The Right of Data Subjects to Stored Data The core of the Data Protection Act 1998, which was passed in order to implement the European Community’s Data Protection Directive 95/46/EC, is the part giving ‘data subjects’ the right of access to stored data relating to them. Under section 7 of the 1998 Act, upon request in writing by a data subject (for which a charge of up to £10 can be made, or £50 if the data is within health or education records), a data user—defined by the Act as a person who ‘controls the content and use of the data’—must within 40 days (a) state whether he or she is processing any personal data relating to the person making the request, (b) give a description of the personal data, the reasons it is being processed, and whether it will be given to any other person or organisation, (c) give a copy of the information comprising the data to the person making the request and (d) give details of the source of the data if this is available. The person making the so-called ‘subject access request’ must be an identifiable living person, and not a ‘legal’ person such as a company. A court can order inaccurate data to be rectified, erased or supplemented and, if damage or distress is caused as a result of an inaccurate entry, compensation is payable by the data user unless he or she can prove that such care was taken as was reasonably required in all the circumstances to ensure the accuracy of the data at the time. Under the Data Protection Act 1998 a data subject also has the right to prevent the processing of his other personal data for direct marketing and the right to object to decisions being taken in relation to him or her by automated means (eg decisions evaluating his or her performance at work, creditworthiness or reliability). It should be noted, however, that while the data subject has the right to see the information contained in personal data, he or she does not have a right to see the documents which include that information. And he or she has no right to see data relating to anyone else. A data user can also refuse to provide access to some data if it is covered by one of the exemptions listed in the Act. These include For more information on the rights of

Rights to Access Information

241

individuals in this context see Part C of ‘The Guide to Data Protection’ issued by the Information Commissioner’s Office (available online at www.ico.org. uk).

Special Situations The Companies (NI) Order 1986 requires companies incorporated in Northern Ireland to supply certain information to the Companies Registry. This may then be examined by members of the public on payment of a fee. The companies must also disclose certain facts and figures in their annual reports (and any prospectuses issued prior to the issue of shares to the public). The Land Registration Act (NI) 1970 provides for the registration of the ownership of property in the Land Registry, details of which may be consulted by the public. This scheme applies principally to rural property. The Registration of Deeds Act (NI) 1970 provides for the registration of ‘memorials’ (ie shortened versions of certain documents of title to land), a scheme which particularly covers urban property and which again allows for public access. The registration of births and deaths is provided for under the Births and Deaths Registration (NI) Order 1976. Article 34 requires the Registrar General to keep an index for each register and this is open for inspection by the public. Any individual may obtain a certified copy of an entry in the register upon payment of a fee. The picture regarding marriages is similar. All marriages, with the exception of Roman Catholic marriages, are governed by sections 6–71 of the Marriages (Ireland) Act 1844, which permit searches in the registers. Much the same effect is achieved for Roman Catholic marriages by section 19 of the Registration of Marriages (Ireland) Act 1863, as amended. Section 23 of the Local Government Act (NI) 1972 requires meetings of a local authority to be open to the public, a right of access which extends to the Northern Ireland Fire and Rescue Services Board but not to Education and Library Boards or to Health and Social Services Boards. A copy of the agenda at local authority meetings during any of the previous six years can be inspected. The 1972 Act permits a council to pass a resolution excluding the public by reason of the confidential nature of the business to be transacted or for such special reasons as may be specified (eg the need to receive advice from a non-council source in private). There is also a power to exclude disorderly or misbehaving members of the public and to ban photographs or recordings (s 27). There is no right of access to meetings of committees and sub-committees within the local council.

242

Colin Harper and Brice Dickson

Useful Contacts ARTICLE 19 Free Word Centre 60 Farringdon Road London EC1R 3GA tel: 0044 20 7324 2500 email: [email protected] www.article19.org Campaign for Freedom of Information Suite 102 16 Baldwins Gardens London EC1N 7RJ tel: 020 7831 7477 www.cfoi.org.uk First-tier Tribunal (Information Rights) General Regulatory Chamber Arnhem House Support Centre PO Box 9300 Leicester LE1 8DJ tel: 0300 123 4504 email: [email protected] www.justice.gov.uk/tribunals/information-rights Information Commissioner’s Office 3rd Floor, 14 Cromac Place Belfast BT7 2JB tel: 0303 1231114 textphone: 01625 545860 (9.00am–5.00pm, Monday–Friday) email: [email protected] ico.org.uk/about_us/our_organisation/northern_ireland Public Record Office of Northern Ireland (PRONI) 2 Titanic Boulevard Belfast BT3 9HQ tel: 028 90 534800 email: [email protected] www.proni.gov.uk/index.htm

11 The Right to Privacy LOUISE MALLINDER

Introduction Privacy is widely recognised in international and regional human rights law as a fundamental right that is necessary for the maintenance of liberal, democratic societies. This importance acknowledges that in addition to protecting an individual’s personal life from public scrutiny, privacy protection can facilitate individuals’ enjoyment of their political rights such as the right to religion, the right to freedom of association and the right to freedom of assembly. In recent decades, protection of the right to privacy within the UK has evolved to be a significant issue as the state has become a ‘world leader’ in using technologies such as biometric databases and surveillance cameras, and private actors, notably the media, have also used technological advances to gather information on individuals without their consent. Despite the importance of the right to privacy and the growing pressures on individuals’ enjoyment of this right, there is at present no comprehensive privacy law within Northern Ireland or the rest of the UK. Historically, the law of Northern Ireland offered only piecemeal protection for privacy, which a person could only rely upon indirectly. For example, suing someone for breach of confidence was possible provided that some private information had been misused or for defamation if material was published that was damaging to an individual’s reputation. It was also possible to succeed in a claim of trespass or nuisance, particularly if private property had been invaded or the intrusion had been insistent and repeated. Similarly, individuals could seek some legal remedies where public authorities exceeded statutory regulations granting them the powers to breach individual privacy in specific circumstances defined as being in the national interest. However, these areas of tort law, equity law and public law protect distinct and specific interests rather than providing a general right to privacy. With the full entry into force of the Human Rights Act 1998 in October 2000, the right to privacy contained in Article 8 of the European Convention on Human Rights (ECHR) became a direct part of Northern Ireland’s law. Thus, for the first time, people in Northern Ireland could directly enforce their right to

244

Louise Mallinder

privacy against public authorities within domestic courts, rather than having to seek remedies at the European Court of Human Rights (ECtHR). However, the Human Rights Act 1998 is not directly enforceable against private bodies, such as the press. Instead, as with the pre-Human Rights Act era, individuals can still invoke their right to privacy against private actors only by relying on an existing cause of action, such as breach of confidence, which the courts can then interpret in light of Article 8 on the basis that the courts themselves are public authorities. As a result, privacy law in Northern Ireland remains a patchwork of the following legal provisions: — general statutory provisions, such as the Human Rights Act 1998 and the Data Protection Act 1998; — statutory regulations governing specific circumstances in which the state can lawfully intrude on an individual’s privacy; — common law rules, such as the laws on breach of confidence, defamation and trespass; and — systems of informal regulation, such as the Press Complaints Commission. Given the diversity of distinct legal provisions relating to the right to privacy in Northern Ireland, this chapter will not seek to survey each of them individually. Rather it will begin by exploring definitions of the right to privacy on the basis of Article 8. In the following sections, it will explore the extent to which people in Northern Ireland have access to remedies for violations of the right to privacy by public authorities and private actors. The latter section will focus primarily on the media because the actions of print media have produced voluminous case law on the right to privacy in recent years. For a complete picture this chapter should be read alongside Chapter 9 on freedom of expression and Chapter 10 on rights to access information.

What is the Right to Privacy? The basis for the most general protection of the right to privacy in Northern Ireland’s law is supplied by Article 8 of the ECHR, which reads: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

From this provision, we can see that although the term privacy is not defined, the Convention nonetheless seeks to protect an individual’s privacy within broad, multiple and overlapping spheres of life. Each of these areas will be explored below.

The Right to Privacy

245

The right to privacy enshrined in Article 8 is not an absolute right. Instead, the Strasbourg case law has indicated that public authorities are permitted to limit the right to privacy provided that the interference is in accordance with the aims set out in Article 8(2). As a result of the incorporation of Article 8 into Northern Ireland’s law through the Human Rights Act 1998, where a public body interferes with an individual’s right to privacy outside these limits, it is acting unlawfully and can be sued by the victim.

Respect for Private Life The ECtHR has described the right to a private life as ‘a broad term not susceptible to exhaustive definition’ (Peck v UK, 2003, para 57). However, from the case law it can be determined that the Court views the right as ‘encompassing, inter alia, aspects of an individual’s physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world’. (Evans v UK, 2006, para 71) The key areas within this right are protections for personal information, personal autonomy and physical integrity.

Personal Information The protection of personal information is often regarded as the core of ensuring respect for private life. It has produced a substantial body of case law from Strasbourg relating to the ways in which public authorities gather, store and use personal data (eg Murray v UK, 1994). This case law has focused on ensuring that states collect ‘particularly sensitive or intimate data’, such as that relating to sexuality (Lustig-Prean and Beckett v UK, 2000) or health (Z v Finland), or engage in covert surveillance (Kopp v Switzerland, 1998), only when there are compelling grounds to do so. The ECtHR has further found that respect for private life entails not just a negative obligation on the state to refrain from interfering in an individual’s personal life, but also a positive obligation to take actions ‘to secure effective respect for private life even in the sphere of the relations of individuals between themselves’ (Von Hannover v Germany, 2004, para 57). However, states are afforded a ‘wide margin of appreciation’ in this area (Mosley v UK, 2011, para 108). Within Northern Ireland, the Data Protection Act 1998 is the primary source of legal protection in relation to data processing, whether by public authorities or private actors. The Act sets out the circumstances in which data can be processed and establishes eight principles for data protection. These require personal data to be: — — — — —

processed fairly and lawfully; obtained for specified and lawful purposes; adequate, relevant and not excessive; accurate and up to date; not kept any longer than necessary;

246

Louise Mallinder

— processed in accordance with the rights of the individual(s) involved; — kept securely; and — not transferred to any other country unless adequate protection is in place there. The Data Protection Act also creates a regulatory framework under which the Information Commissioner monitors compliance with the Act by individuals and organisations engaged in data collection. Failure to comply with this framework is a criminal offence. See Chapter 10 for more information on the Act. In Northern Ireland the personal information of individuals who are in receipt of health or social care should be handled in accordance with the Code of Practice on Protecting the Confidentiality of Service User Information, which was issued in 2012 by the Privacy Advisory Committee of the Department of Health, Social Services and Public Safety. Institutions wishing to make use of such personal information in Northern Ireland cannot benefit from the protection afforded by section 251 of the National Health Service Act 2006, which allows research to be authorised in certain circumstances even where an individual’s consent has not been given. No equivalent legislation yet applies in Northern Ireland.

Personal Autonomy The right to a private life has also been interpreted by the ECtHR as embracing personal autonomy and personal development (eg Pretty v UK, 2002, para 61, where the Court said that a person’s right to choose when to die engaged Article 8). This means that information concerning one’s gender, sexual orientation and sexual life is considered to be private. For example, in Dudgeon v UK (1981), a case which went to Strasbourg from Northern Ireland, the Court found that legislation criminalising homosexual intercourse in Northern Ireland violated Article 8 as it prevented an individual exercising autonomy in his personal sexual preferences, and the state’s justification for such a prohibition was disproportionate to the impact it had on the individual. In addition, personal autonomy can relate not just to the extent to which others intrude on an individual’s choices but also to the extent to which an individual can retain control over his or her own body. The ECtHR has explored this issue in relation to questions of abortion (Evans v UK, 2006; A, B and C v Ireland, 2010) and assisted suicide (Pretty v UK, 2002). In the former cases, the Court found that states were entitled to a wide ‘margin of appreciation’ on the question of abortion as ‘there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it’ (para 232). In relation to assisted suicide it found that Article 8 could be engaged with regards to ‘quality of life’ and the court was ‘not prepared to exclude that this constitutes an interference with her right to respect for private life’ (paras 52–54). However, the Court then ruled that: ‘It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created.’ It therefore held that the UK’s criminalisation of assisted suicide was not disproportionate (para 74).

The Right to Privacy

247

Bodily Integrity Finally, the right to a private life has been interpreted to include bodily integrity. While this incorporates an individual’s right to freedom of choice regarding control over his or her own body, it also includes a right to freedom from physical intrusion, such as corporal punishment (eg Costello-Roberts v UK, 1995). In Northern Ireland’s law, the state is empowered in certain circumstances to intrude upon bodily integrity. For example, under article 55 of the Police and Criminal Evidence (NI) Order 1989, the police are allowed to take intimate samples and to conduct strip searches, where they have reasonable suspicion that an individual may be carrying Class A drugs or objects that may cause harm to anyone. However, such searches must be conducted in accordance with requirements of Article 8.

Respect for Family Life The ECtHR has interpreted the right to family life as offering protection to many different types of families. For example, in X, Y and Z v UK (1997), the Court found that the UK had not violated Article 8 when it refused to recognise a female to male transsexual as the father of a child who was conceived through artificial insemination from a donor. The Court did nonetheless conclude that due to the father’s role in the child’s life a family relationship between them did exist. As with other elements of the right to privacy, the European Court has found that the right to a family life creates not only negative obligations on states to refrain from interference but also positive obligations to allow people to lead a family life. For example, in Nurzynski v Poland (2011), the Court found that where a person is being held in detention, the authorities are required to enable him or her to maintain contact with his close family. Furthermore, in Abou v Romania (2011), the Court held that the state violated Article 8 by forcing the applicant to leave Romania, where the public authorities had not acted in accordance with domestic law.

Respect for The Home The right to respect for the home clearly encompasses an individual’s dwelling, but the ECtHR has also expanded this concept to include a person’s office used for professional purposes (Heino v Finland, 2011). Where this right applies, it relates to an individual’s right to occupy their home and their right not to be expelled from it. In addition, individuals have the right to privacy within their homes (see, eg Bisir v Moldova, 2011). However, in Northern Ireland’s law, hundreds of pieces of legislation permit public authorities to enter private homes. These aim to protect the public welfare and prevent crime and include such laws as the Firearms

248

Louise Mallinder

Act 1968, the Misuse of Drugs Act 1971, the Criminal Law Act 1977, the Mental Health Act 1983, the Public Health (Control of Diseases) Act 1984, the Police and Criminal Evidence (NI) Order 1989 and the Fire and Rescue Services Act 2004. Within these laws there are inconsistencies relating to whether officials need to show warrants, whether they are permitted to use force, and what kind of penalties can be imposed on those who refuse them entry.

Respect for Correspondence Respect for correspondence applies, of course, to postal correspondence but today can also apply to other forms of communications such as emails, faxes or social networking. To date, case law from the ECtHR has focused on the right of a detainee to correspond with the outside world. For example, in Milosevic v Serbia (2011), the applicant complained that the prison authorities were opening and stamping all his legal correspondence, which the Court found not to be in accordance with the law. Within Northern Ireland, as will be discussed below, the Regulation of Investigatory Powers Act 2000 governs when and how some public authorities can intercept personal communications as part of their investigatory or intelligence functions.

Privacy, Surveillance and Public Authorities Although the right to privacy was incorporated into Northern Ireland’s law by the Human Rights Act 1998, it has recently come under increasing pressure from the state. Technological advances have meant that it is now cheaper and easier for public authorities to collect, process and share considerable amounts of personal data, and the state can now use a wider range of surveillance tools, such as fullbody scanners and CCTV cameras. One of the practical risks posed by such enormous data collection strategies in which large numbers of public officials may have access to information is that the data will not be kept secure. In recent years, several incidents have occurred in which copies of official databases containing the personal data of thousands of individuals have been lost or left in public places. In addition, state surveillance strategies often provoke political concerns as they could, for example, impinge on peaceful public protests. In such contexts, intrusions on the right to privacy could have negative repercussions on individuals’ ability to exercise their political rights. Under section 6(1) of the Human Rights Act 1998, ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right’. Furthermore, where persons believe that a public authority has violated their rights, section 7(1) permits them to ‘bring proceedings against the authority ... in the appropriate court or tribunal’ and to rely directly on their Convention

The Right to Privacy

249

rights in those proceedings. When addressing complaints about interference with Article 8 rights courts are required to determine: (1) whether the interference was conducted in accordance with domestic law; (2) whether it was necessary to address public security or well-being; and (3) whether the measures taken were proportionate to the intrusion on the individual’s right to privacy. In this way, it is possible for the courts to find that an individual’s right to privacy was violated, but that such an intrusion was necessary and proportionate in the given circumstances. This approach requires the courts to determine whether the public authorities appropriately balanced the rights of the individual against the public interest. How to strike this balance will depend in part on the severity of the public interest needs invoked. The state may find it easier to justify interferences based on national security (see Leander v Sweden, 1987, paras 58–67), than on crime prevention (see Funke v France, 1993, paras 53–57). Where a state interferes with privacy rights, it must ensure that there are safeguards to protect individuals from arbitrary interference, that the interference is conducted in accordance with the law, and that strict limits are placed on the power conferred (Camenzind v Switzerland, 1997, para 45). Assessments of the appropriateness of safeguards will measure the level of intrusion on an individual’s privacy in relation to the importance of the national interests that the intrusion seeks to protect. This chapter will now explore how the balance has been struck in recent years in relation to: (1) stop and search powers; (2) the use of personal and biometric databases; (3) the use of closed-circuit television (CCTV); and (4) the interception of communications and surveillance.

Stop and Search Powers Within the law of Northern Ireland, police officers are empowered to stop and search any person or vehicle under article 3 of the Police and Criminal Evidence (NI) Order 1989 provided that the officer has ‘reasonable grounds for suspecting that he [or she] will find stolen or prohibited articles’. In addition, under the Terrorism Act 2000, section 89 empowers police officers to stop a person for as long as is necessary to question him or her about his or her identity and movements and what he or she knows about a recent explosion, a recent event endangering life, or a person killed or injured in a recent explosion or incident. If a person refuses to stop or answer questions, it is a criminal offence. Similar powers are provided in section 21 of the Justice and Security (NI) Act 2007, which grants both police officers and members of the armed forces the power to stop and question individuals about their identity and movements. According to statistics produced by the Police Service of Northern Ireland, the stop and search powers under these three pieces of legislation were used against 45,394 persons in a two-year period between 2009 and 2011.

250

Louise Mallinder

The intrusion of privacy resulting from a similar power (conferred by section 44 of the Terrorism Act 2000) has triggered complaints to the ECtHR. In Gillan and Quinton v UK (2010) the applicants complained after being stopped and searched near to an arms fair in London in 2003. They initially challenged the police action through an application for judicial review, but they lost in the House of Lords (R (Gillan) v Commissioner of Police for the Metropolis, 2006). When the case reached Strasbourg, the ECtHR found that, although the stop and search powers were governed by domestic law the use of the coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life. Although the search is undertaken in a public place, this does not mean that Article 8 is inapplicable. Indeed, in the Court’s view, the public nature of the search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment (para 63).

The Court further considered whether the existing legal framework created sufficient safeguards to protect citizens. It found that ‘there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer’, and noted that such broad discretion, particularly where there is no requirement for ‘reasonable suspicion’, could result in the discriminatory use of the powers against minority populations or their misuse against peaceful protestors (para 85). Following this decision, the Terrorism Act 2000 (Remedial Order) 2011 was introduced in order to provide greater safeguards in the use of stop and search powers within antiterrorism legislation throughout the UK. It was replaced by a provision in the Protection of Freedoms Act 2012, on which see Chapter 3 above.

Personal and Biometric Databases Public authorities within Northern Ireland and the UK, as in other developed countries, have increasingly constructed databases containing personal and biometric information. These databases are designed to facilitate law enforcement, combat terrorism, and enhance public sector service delivery. In addition, where public functions are outsourced to private actors, public authorities may share this personal data with private companies. The ECtHR considered the powers of state to collect personal data in Leander v Sweden (1987), where the applicant complained that his personal details had been stored on a secret police register for national security purposes, that this information had been shared with the navy so that the navy could vet employees, and that he had no opportunity to challenge the information. The Court found that in a system applicable to citizens generally, ... the law has to be sufficiently clear in its terms to give them an adequate indication as to the circumstances in which and the

The Right to Privacy

251

conditions on which the public authorities are empowered to resort to this kind of secret and potentially dangerous interference with private life (para 51).

In this case, the Court held that the relevant domestic law contained detailed information on the procedures to be followed by the police when sharing personal data. When considering whether the measure was necessary, the Court noted ‘the risk that a system of secret surveillance for the protection of national security poses of undermining or even destroying democracy on the ground of defending it’ (para 60), but it accorded the state a wide ‘margin of appreciation’. The issue of data sharing by public authorities was considered by the High Court of Northern Ireland in Re O’s Judicial Review (2008). This case was brought by a police officer who alleged that a decision by the Police Ombudsman to require the Chief Constable to provide all medical and occupational health records relating to his medical condition violated his right to privacy. The applicant had been involved in shooting dead a member of the public and the Police Ombudsman was investigating the event. In reviewing the decision, the High Court found that, ‘given the highly personal and sensitive data’ requested by the Police Ombudsman, ‘disclosure of that material without his consent would entail an interference with his right to respect for private life’ (para 21). The court found that this intrusion was pursued for the legitimate aim of crime prevention (para 31), but it had not been carried out in a proportionate manner and hence violated Article 8 (para 54). The legal authority for the police to take fingerprints and other bodily samples was conferred in England and Wales by Part 5 of the Police and Criminal Evidence Act 1984 (the PACE Act) and in Northern Ireland by Part 6 of the Police and Criminal Evidence (NI) Order 1989 (the PACE Order). The world’s first National DNA Database was established in England in 1995. It was originally designed to contain the DNA records of convicted criminals, but its scope has since been considerably widened. By the Criminal Justice and Police Act 2001, which applied directly in Northern Ireland as well as in England and Wales, the database began to collect samples and data relating to persons who had not been prosecuted or who had been prosecuted but acquitted. It was further expanded by the Criminal Justice (NI) Order 2004 (mirroring the Criminal Justice Act 2003 for England and Wales), which allowed for ‘non-intimate samples’, such as rooted hair or mouth swabs, to be taken without consent. The 2003 Order also allowed DNA to be collected from persons who had been arrested, even if they were not later charged, and permitted any such sample to be retained indefinitely. Part 6 of the Police and Criminal Evidence (Amendment) (NI) Order 2007 made further changes to the police’s powers. Northern Ireland now has its own DNA database, records from which are exported to the National DNA Database in England as well as being stored in Northern Ireland. By 2009, the Police Service of Northern Ireland held the profiles of 103,441 persons on its DNA database. The compatibility of the National DNA Database with the ECHR was challenged unsuccessfully before the House of Lords in R (S) v Chief Constable of

252

Louise Mallinder

South Yorkshire Police (2004), but the case was then taken before the ECtHR as S and Marper v UK (2008) and the applicants won. One of the two applicants had been aged 11 when he was arrested for an offence for which he was later acquitted and the other had also been arrested but then acquitted. Both had had their DNA samples and fingerprints had been taken, and the police refused to delete these samples following their acquittals. In reviewing the case, the Court found that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences ... fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society. (para 125)

This decision was later endorsed by the UK Supreme Court in R (GC and C) v Commissioner of Police for the Metropolis (2011), which found that the excessive retention of DNA profiles violated Article 8. In addition, in Re BBC (Attorney General’s Reference No 3 of 1999) Lord Phillips found that Article 8 would be violated by publishing that an individual’s retained DNA ‘has been used to link him to the commission of a crime of which he has been acquitted’ (para 22). The UK government responded to the ECtHR’s judgment by enacting the Crime and Security Act 2010. This established a range of time limits for the retention of biometric data depending on the seriousness of the offence, whether it resulted in a conviction, and whether the data was collected from a minor. In addition, the Minister of Justice in Northern Ireland has launched a public consultation on the deletion after three years from the Northern Ireland DNA Database of records relating to people who have been charged but not convicted.

Closed-circuit Television (CCTV) As frequently discussed in the media, the UK currently has a greater number of surveillance cameras than any other country. In 2011, research conducted by the Cheshire Constabulary estimated that there were 1.85 million CCTV cameras in the UK, a figure that equates to one camera for every 32 people. These cameras are operated by the police, local government and private organisations. Within Northern Ireland, according to the privacy campaign group Big Brother Watch, Belfast City Council alone operated 400 cameras in 2009. CCTV cameras have been widely installed for crime prevention and detection, the regulation of anti-social behaviour, and surveillance. In addition, speed cameras can match images with information in databases containing driver details and facial recognition features in order to ensure that drivers who are speeding can be fined. As a result of the prevalence of CCTV, individuals are often subject to surveillance without their knowledge.

The Right to Privacy

253

Despite the widespread use of CCTV and its potential to intrude on individuals’ right to privacy, its use is not currently regulated by a single legal framework. Where CCTV cameras are used to collect, process and store data (as opposed to simply displaying unrecorded live footage), they are governed by the Data Protection Act 1998, which applies to data collected by both public authorities and private actors. In addition, where public authorities use CCTV cameras for covert use, they are governed by the Code of Practice on Covert Surveillance and Property Interference, issued under section 71 of the Regulation of Investigatory Powers Act 2000. However, this does not regulate non-covert use of these cameras, or the use of CCTV by private actors. The impact of CCTV cameras on the right to privacy was considered by the ECtHR in Peck v UK (2003). In this case, the applicant was recorded on CCTV cameras owned by Brentwood City Council walking through the city centre carrying a knife, which he had just used to try to commit suicide. The Council subsequently shared the footage with a television company and the man’s undisguised image was broadcast without his consent on a programme watched by 350,000 viewers. In considering the case, the Court found: The monitoring of the actions of an individual in a public place by the use of photographic equipment which does not record the visual data does not, as such, give rise to an interference with the individual’s private life. On the other hand, the recording of the data and the systematic or permanent nature of the record may give rise to such considerations. (para 59)

The Court further found that the subsequent broadcasting of the event on a television programme without the man’s consent or the masking of his image constituted a violation of his right to a private life. The Court added that, although the Council’s use of CCTV and the sharing of images with a broadcaster were lawful, in this case the impact on the applicant’s privacy was disproportionate. The findings in this case illustrate a legal distinction between the recording and processing of images, in respect of which an individual’s privacy rights can be protected, and the mere observing individuals in public spaces, which may not attract any protection.

Interception of Communications and Surveillance During the conflict in Northern Ireland, the interception of communications and surveillance were commonly used counter-terrorism techniques. In addition, during the 1970s and 1980s, the UK security services covertly listened to and recorded the telephone conversations of trade union members and left-wing politicians, including members of the government (a process known as ‘wiretapping’). In Malone v Metropolitan Police Commissioner (No 2) (1979), an English court confirmed that a person had no right not to have his or her telephone tapped by state authorities. There was nothing to make the practice unlawful; therefore, it

254

Louise Mallinder

had to be tolerated. Mr Malone then took his case to Strasbourg, where the ECtHR decided in 1984 that the UK’s law was in breach of Article 8 of the ECHR. The Court said that the UK’s law did not indicate with sufficient clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. The Interception of Communications Act 1985 was passed in order to comply with the ECtHR’s judgment in the Malone case. This Act made it an offence for anyone to intercept communications sent by post or by means of a public communications system. However, interception remained permissible if it was consented to (eg when someone wished to trace offensive telephone calls) or if it was carried out under a warrant issued by the Secretary of State, who was not to issue one unless he or she considered it to be necessary in the interests of national security, for the purpose of preventing or detecting serious crime, or for the purpose of safeguarding the economic well-being of the UK. The UK government was forced to introduce further safeguards following the ECtHR’s decision in Halford v UK (1997). This case concerned the Merseyside Police Authority’s decision to intercept the telephone calls of Ms Halford, an Assistant Chief Constable, who had lodged a claim against the authority on the basis that she had been refused promotion because of her gender. The ECtHR found that ‘telephone calls made from business premises as well as from the home may be covered by the notions of “private life” and “correspondence” within the meaning of Article 8(1)’ (para 44). The Court further found that for such interference in individuals’ private lives to be considered in accordance with the law, the law must be: sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such secret measures. (para 49)

The Court held that the Interception of Communications Act 1985 failed to provide such safeguards and hence there had been a violation of Article 8. It recently restated this finding in Liberty v UK (2008), which related to the interception of telephone calls between Britain and Ireland in the 1990s. As a result of the Halford decision, the Interception of Communications Act 1985 and parts of the Police Act 1977 were replaced by the Regulation of Investigatory Powers Act 2000 (RIPA), which was enacted to try to ensure that the law in this area fully complied with the ECHR and with the newly enacted Human Rights Act 1998. RIPA permits a wide range of public authorities, including police services and local governments, to make requests for surveillance powers. Depending on the public authority making the request, there can be directed and intrusive surveillance, and the use of covert human intelligence sources, provided these are expressly authorised by designated persons such as the police or the security services (ie those bodies listed in Schedule 1 to the Act). The authorising persons must believe that the authorisation is necessary in the interests of national security, for the purpose of preventing or detecting serious crime, or in the interests of the economic well-being of the UK (ss 28(3) and 32(3)). Directed

The Right to Privacy

255

and covert surveillance can also be authorised in the interests of public safety, for the purpose of protecting public health, for the purpose of assessing any tax or for any other purpose specified in an order made by the Secretary of State (s 28(3)). Authorisations of intrusive surveillance granted to the police or customs officers have to be approved by a Surveillance Commissioner (s 36), and appeals against the decisions of that Commissioner can be taken to the Chief Surveillance Commissioner (s 38). RIPA also created an Interception of Communications Commissioner (s 57) who is empowered to monitor whether public authorities are using their surveillance powers legally and responsibly. According to the Annual Report of the Interception of Communications Commissioner, public authorities as a whole submitted 552,500 requests for communications data during 2010. On grounds of national security, the Commissioner declined to reveal what percentage of these requests related to Northern Ireland, and similar restrictions are placed on disclosing the numbers of Foreign Office warrants. In Northern Ireland, the Office of the First Minister and Deputy First Minister is amongst those who are designated to authorise directed or covert surveillance but not intrusive surveillance (s 31) and there is an Investigatory Powers Commissioner for Northern Ireland to keep this function under review (s 61). The surveillance powers regulated by RIPA were challenged in the case of Re McE (2009). This related to covert surveillance by the Police Service of Northern Ireland of conversations between a lawyer and his clients, who were Loyalist paramilitaries. The bugging of the conversations resulted in the lawyer being charged with incitement to murder and perverting the course of justice. In considering the matter, the House of Lords held that RIPA did permit covert surveillance despite the existence of legal professional privilege or statutory rights to consultation with legal representatives. However, such surveillance could be permitted only if the safeguards within RIPA were adhered to and there was no breach of Article 8. Given the severity of intrusion on private legal conversations, the safeguards used had to be those stipulated by section 32 of RIPA.

Privacy, Freedom of Expression and the Media During 2011, the phone-hacking scandal involving national newspapers and the debates over the use of super-injunctions brought the question of media intrusions on the right to privacy firmly into the public spotlight. Traditionally, in order to preserve press freedom, UK governments have opted to allow the print media to self-regulate, rather than relying on civil or criminal regulation. Individuals who feel that their privacy has been invaded can therefore complain to the Press Complaints Commission, a body dominated by media representatives. If the complaint is upheld, the Commission can censure the newspaper or journalist and may even require its adjudication to be published by the offending paper. However, the Commission has no power to fine an offender or to award damages to a complainant.

256

Louise Mallinder

Since the entry into force of the Human Rights Act 1998, UK courts have gradually supplemented these self-regulatory protections and established a considerable body of case law on the application of Article 8 to disputes between private actors. As the following paragraphs reveal, the case law to date indicates that when determining whether a private actor has breached an individual’s privacy, the courts will ask three questions: do the courts have jurisdiction to intervene; is the published information private; and, if so, is its publication in the public interest?

Do the Courts have Jurisdiction ? As it is primarily binding only on public bodies, the Human Rights Act 1998 is not directly enforceable against private actors. However, people can now complain about violations of their right to privacy under Article 8 when suing private actors using an existing cause of action such as breach of confidence. When such complaints have been made over the past decade, UK courts have gradually developed an indirect ‘horizontal’ effect for Article 8 by relying on their own obligation under section 6 of the Human Rights Act to act in a manner that is compatible with Convention rights, and section 12 of the Act specifically requires the courts to balance freedom of expression against the right to privacy. This approach was endorsed by the Court of Appeal of England and Wales in B and A v C (2002) and then by the House of Lords in Campbell v MGN (2004).

Is the Information Private ? Traditionally, under the common law, the doctrine of breach of confidence offered some protection against the publication of confidential information. However, UK courts and the ECtHR have gradually extended this to apply to information where individuals have a reasonable expectation of privacy. This expectation could arise in relation to the nature of the information, the form in which it is kept, or whether it has been disclosed as part of a confidential relationship. The reinterpretation of the law of confidence began soon after the Human Rights Act entered into effect, in the case of Douglas v Hello! (2001). Michael Douglas and Catherine Zeta-Jones tried to prevent Hello! from publishing their wedding photographs, which the two stars had promised instead to give to OK magazine. In the English Court of Appeal Sedley LJ said that ‘we have reached a point at which it can be said with confidence that the law recognises and will appropriately protect a right of personal privacy’ (para 110), but the majority of the court held that here publication should be permitted and refused to continue the interim injunction against Hello!. The two stars later successfully claimed damages from Hello! for the breach of confidence, but Lindsay J too found that there was not yet a full-blown right to privacy.

The Right to Privacy

257

The law of confidence was also dramatically employed to protect the right to privacy in Venables and Thompson v News Group Newspapers Ltd (2001), where a global injunction was granted to prevent the disclosure of any information which could lead to the identification of the killers of Jamie Bulger after their release from prison. Dame Elizabeth Butler-Sloss held that the information relating to the identification of Venables and Thompson required ‘a special quality of protection’ as its disclosure could result in ‘grave and possibly fatal consequences’. The decision shows that breach of confidence may occur based on the nature of the information alone, rather than the circumstances in which someone acquired it. It seems, however, that the occurrence of sexual relations per se is not something which has to be treated as confidential. In Theakston v MGN Ltd (2002) the judge refused to prevent the publication by the Sunday People of photographs of a television presenter engaging in sexual acts in a London brothel. In B and A v C (2002), which concerned revelations about the extra-marital affairs of a premiership footballer, the Court of Appeal set out 15 guidelines to help courts strike a balance between privacy and freedom of expression. These stated, for example, that a duty of confidence will arise if the party is in a relationship in which he ‘can reasonably expect his privacy to be protected’ and noted that ‘the more stable the relationship the greater will be the significance which is attached to it’. A landmark decision on the protection of private information was delivered by the House of Lords in Campbell v MGN (2004), where Lord Nicholls argued that breach of confidence had evolved from relating solely to information that was expressly confidential to include any information a person receives which he or she knows or ought to know is fairly and reasonably to be regarded as confidential. Indeed he suggested that the tort of breach of confidence is now better described as the tort of misuse of private information and that the crucial issue is whether ‘the person in question had a reasonable expectation of privacy’ (para 21). In the same decision, Lord Hoffmann contended that the tort was now based upon ‘the protection of human autonomy and dignity—the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people’ (para 51). This issue was also considered by the ECtHR in Von Hannover v Germany (2004), where it found that press photographs of Princess Caroline of Monaco engaging in ‘her daily life’ had infringed her privacy. In reaching this decision, the Court noted that ‘there is ... a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”’ (para 50). It also observed that Princess Caroline exercised no official functions and hence the photographs related solely to her private life (para 76). This approach went beyond the approach of the House of Lords in Campbell v MGN. In 2006, in HRH Prince of Wales v Associated Newspapers Ltd, the Court of Appeal found that a travel journal handwritten by Prince Charles was a ‘paradigm example of a confidential document’ as it was obviously private and set out the prince’s personal views and impressions (para 35). Although the journal was seen by his staff, they were contractually obliged to keep the journal’s contents

258

Louise Mallinder

confidential. Likewise, in Ash v McKennitt (2006) an English court prevented the disclosure in a book about to be published by Ms Ash of personal information about Ms McKennitt, a Canadian folk singer. Ash had learned the information in the course of a friendship with McKennitt and whilst being employed by her under a contract containing a confidentiality clause. The court held that McKennitt had a ‘legitimate expectation’ of protection and respect for her private life, even, on some occasions, in relatively public circumstances (para 52). Even the disclosure of ‘anodyne’ or ‘trivial’ information, such as details of the interior of McKennitt’s home, could engage Article 8 (para 58). The concept of a ‘reasonable expectation of privacy’ was further endorsed by the Court of Appeal in Browne v Associated Newspapers Ltd (2007) and by the High Court in Murray v Express Newspapers Plc (2007). The latter case concerned unauthorised photographs taken of a child by the Sunday Express. In holding that on the facts there was no reasonable expectation of privacy, the court said (in para 36) that it was relevant to consider: — — — — —

the attributes of the claimant; the nature of the activity in which the claimant was engaged; the place at which it was happening; the nature and purpose of the intrusion; the absence of consent and whether it was known or could be inferred that consent was absent; — the effect on the claimant; and — the circumstances in which and the purposes for which the information came into the hands of the publisher. Courts in Northern Ireland have followed the approach of the English courts. For example, in Callaghan v Independent News & Media Ltd (2009), the High Court said that ‘the question as to whether there is a reasonable expectation of privacy is an objective question and a question of fact’. The court found that, although under the terms of his release from prison Callaghan could not expect privacy from the police, probation service or prison service, he did retain ‘a residuum of privacy’, which would need to be balanced against the public interest in publishing information about him. The High Court again applied the same criteria in Lee v News Group Newspapers Ltd (2010), which was about the publication of information relating to the personal life of well-known musician Van Morrison. The court found that the case breached the applicant’s reasonable expectations as the disclosed information related to private and personal activities and to descriptions of children and the home (para 34).

Is the Publication in the Public Interest? If the courts find that private information has been disclosed, they then have to determine whether the disclosure was in the public interest. This entails balancing

The Right to Privacy

259

Article 8 protection against the protection of the freedom of expression contained in Article 10 of the ECHR (see Chapter 9). With the entry into force of the Human Rights Act 1998, the right to freedom of expression became a direct part of UK law, and section 12 of that Act outlines requirements for UK courts to address if they are considering granting remedies, such as injunctions, which would affect freedom of expression. The requirements include having particular regard to the extent to which ‘(i) the material has, or is about to, become available to the public, or (ii) it is, or would be, in the public interest for the material to be published’ and to ‘any relevant privacy code’. However, under the Human Rights Act neither Article 8 nor Article 10 has precedence over the other (Campbell v MGN, 2004, para 55). UK courts have engaged in balancing Articles 8 and 10 in numerous cases relating to the publishing of personal information by the media, with differing results. In Venables and Thompson v News Group Newspapers Ltd and others (2001), where the disclosure could have had severe consequences for the applicants’ security, the court held that: ‘This factor not merely rendered the information confidential, but outweighed the freedom of expression that would otherwise have underpinned the right of the press to publish the information.’ In B and A v C (2002), as noted above, the Court of Appeal, when determining whether media disclosures of the private lives of celebrities are in the public interest, set out guidelines for balancing Articles 8 and 10. These provide that press freedom is itself of public interest, given the role that the media play within society. They further state that courts cannot interfere with press freedom ‘where there is no identifiable special public interest in any particular material being published’. However, where there is a clear public interest in publication the Court of Appeal argued that this strengthened the case for publication. As regards public figures, the guidelines state that, although they are entitled to a private life, because of their public position they ‘must expect and accept that [their] actions will be more closely scrutinised by the media’. They further state that where public figures have ‘courted public attention’ they then have ‘less ground to object to the intrusion which follows’. In the landmark Campbell case (2004), the majority of the House of Lords found that there was a legitimate public interest in exposing the truth of Ms Campbell’s drug addiction as she had previously made public denials about it (paras 24, 58 and 151). In addition, Lord Hope said that the courts have to determine whether publication ‘pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy’ (para 113). A few weeks after this ruling, the ECtHR decided the Von Hannover case (2004), where it was held that there was no public interest in publishing information on the private life of Princess Caroline because, although she was a public figure, the ‘published photos and accompanying commentaries relate exclusively to details of the applicant’s private life’ (para 64) and therefore did not ‘contribute to any debate of general interest to society’, a factor which the court argued should be ‘decisive’ in balancing Articles 8 and 10 (para 76). In its more recent judgment

260

Louise Mallinder

in Mosley v UK (2011) the ECtHR maintained the importance of the distinction between information that informs public debate and information that does not (para 112). In particular, it confirmed that tawdry, lurid or sensational reporting ‘does not attract the robust protection of Article 10 afforded to the press’ and it stressed that in assessing whether there is a public interest justifying an interference with the right to respect for private life, ‘the focus must be on whether the publication is in the interest of the public and not whether the public might be interested in reading it’ (para 114). Thus, Article 8 may take precedence over Article 10 where the information being disclosed is private and intimate and will not contribute to public debate. The importance of weighing the public interest was reiterated by the Court of Appeal of England and Wales in HRH Prince of Wales v Associated Newspapers Ltd (2006), and in Re BBC (Attorney-General’s Reference No 3 of 1999), Lord Phillips said, in the House of Lords, that the test for balancing Articles 8 and 10 had become ‘well settled’, namely whether publication of the material pursues a legitimate aim, and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy. (para 23)

In reviewing the facts of the case, Lord Phillips concluded that the goals of disclosure of personal information by the BBC were legitimate as they related to crime prevention, and the methods adopted were proportionate to these aims. In contrast, more recent judgments relating to press disclosures of the details of the extramarital affairs of celebrities have held them not to be in pursuit of legitimate aims and hence not in the public interest (CTB v News Group Newspapers Ltd, 2011). The courts of Northern Ireland have also explored how to balance Article 8 and 10 rights. In Callaghan v Independent News & Media Ltd (2009), the High Court distinguished between the public interest ‘in relation to the debate as to whether it is right to publish detailed information about sex offenders when they are to be released into the community and if so the extent of that information’ and the public interest in publishing unpixelated photographs of particular offenders (para 25). The court found that the publishing of the photographs might be detrimental to the public interest where it undermined the rehabilitation of offenders, and that therefore the restriction on publishing photographs was proportionate (para 79). Subsequently, in Lee v News Group Newspapers Ltd (2010), the High Court held that given the personal nature of the information in this case, concerning the life of Van Morrison, the public did not have a legitimate interest in the claimants’ private affairs. Within the law of both England and Northern Ireland, disclosure of particularly sensitive information, such as the anonymity of rape complaints or the names of children who are party to legal proceedings, is subject to statutory reporting restrictions. However, in order to protect the interests of open justice, these are very limited and specific. In other cases, reporting restrictions are imposed only if it can be demonstrated that the relevant information is private and that its publication is not in the public interest. Where this is proven, the law provides a

The Right to Privacy

261

number of remedies, including injunctions to prevent the publication of the private material and damages to compensate for injury caused by prior publication.

Useful Contacts Big Brother Watch 55 Tufton Street London SW1P 3QL tel: 0207 340 6030 email: [email protected] www.bigbrotherwatch.org.uk Electronic Privacy Information Center 1718 Connecticut Ave NW Washington, DC 20009 tel: +1 202 483 1140 email: [email protected] www.epic.org GeneWatch 60 Lightwood Rd Buxton SK17 7BB tel: 01298 24300 email: [email protected] www.genewatch.org International Forum for Responsible Media email: [email protected] inforrm.wordpress.com JUSTICE 59 Carter Lane London EC4V 5AQ tel: 020 7329 5100 email: [email protected] www.justice.org.uk Liberty Liberty House 26–30 Strutton Ground London SW1P 2HR tel: 020 7403 3888 email: [email protected] https://www.liberty-human-rights.org.uk/?

262

Louise Mallinder

Privacy International 62 Britton Street London, EC1M 5UY tel: 020 3422 4321 email: [email protected] www.privacyinternational.org Surveillance Studies Network email: [email protected] www.surveillance-studies.net

12 The Equality Framework in Northern Ireland DEBBIE KOHNER

The next few chapters of this book concentrate on equality rights in Northern Ireland. They look in turn at discrimination on grounds of gender, religious belief and political opinion, ethnicity, disability, age and sexual orientation. This chapter looks more generally at the development of non-discrimination law in Northern Ireland over time, the push for a Single Equality Act, the duties and powers of the Equality Commission for Northern Ireland (soon to be renamed the Equality and Good Relations Commission), the significance of the equality duties imposed by section 75 of the Northern Ireland Act 1998 and in particular how that provision is applied, monitored and enforced, and the equality aspects of various human rights laws.

The Development of Anti-discrimination Legislation The original legislative commitment against discrimination in Northern Ireland was contained in the Government of Ireland Act 1920, which prohibited the Parliament and government of Northern Ireland from giving any advantage or disadvantage on account of religious belief. However, there was no clear mechanism through which to enforce this commitment. After this, modern antidiscrimination legislation was introduced to Northern Ireland in four key stages.

First Stage First, the legislature responded to the civil rights and women’s rights campaigns of the 1960s, which concentrated on the need to address discrimination against Catholics and women respectively. The Northern Ireland Constitution Act 1973 made it unlawful for a public authority to discriminate on the ground of religious belief or political opinion. This was supplemented by the Fair Employment (NI)

264

Debbie Kohner

Act 1976, which prohibited religious and political discrimination in the workplace and set up the Fair Employment Agency to enforce the legislation. At the same time, the Equal Pay Act (NI) 1970 and the Sex Discrimination (NI) Order 1976 outlawed sex discrimination in the workplace, in the provision of education and in access to goods, facilities or services, and the 1976 Order set up the Equal Opportunities Commission for Northern Ireland. Both the fair employment and the sex discrimination legislation were updated in the following two decades, in order to strengthen protections and the enforcement mechanisms. In the case of fair employment, various studies had shown the lack of impact of the earlier legislation and so the Fair Employment Act 1989 provided for compulsory monitoring, affirmative action, and a stronger Fair Employment Commission to replace the Fair Employment Agency. In the case of sex discrimination, the statute book was updated to take full account of various EU directives which addressed equal treatment between men and women.

Second Stage The second stage of anti-discrimination legislation in Northern Ireland dealt with disability and race discrimination. The Disability Discrimination Act 1995 originally applied throughout the UK, although there were some modifications relating to Northern Ireland. It prohibited discrimination ‘for a reason that relates to the disabled person’s disability’ in employment, education, goods, facilities and services, including public transport. It also set out requirements for the need to make ‘reasonable adjustments’ and established the Northern Ireland Disability Council. Despite the prohibition of race discrimination in Great Britain by the Race Relations Act 1965, equivalent protections were not introduced for Northern Ireland until over 30 years later. Following a concerted campaign by civil society, and a clear call from the United Nations, the Race Relations (NI) Order was finally passed in 1997, and it also set up the Commission for Racial Equality. The 1997 Order prohibited discrimination on ‘racial grounds’ in employment, education, goods, facilities and services.

Third Stage The third key stage in the development of anti-discrimination legislation in Northern Ireland was the passing of the Northern Ireland Act 1998, which put on a legislative footing much of the Belfast (Good Friday) Agreement. Equality and human rights were central to the Agreement, where the British and Irish governments committed to principles of equality and non-discrimination. These values were also alluded to in the Pledge of Office and Code of Conduct for all ministers in the new Northern Ireland Executive.

The Equality Framework in Northern Ireland

265

The Belfast (Good Friday) Agreement also set out commitments, subject to public consultation, to progress rapidly with ‘measures on employment equality included in the recent White Paper’ and to create a statutory obligation on public authorities in Northern Ireland to carry out all their functions with due regard to the need to promote equality of opportunity in relation to religion and political opinion, gender, race, disability, age, marital status, dependants and sexual orientation. The former materialised in the Fair Employment and Treatment (NI) Order 1998 and the latter in section 75 of the Northern Ireland Act 1998 (discussed below). In addition, the Northern Ireland Act 1998 established the new Equality Commission for Northern Ireland (also discussed below). Finally, it introduced a further anti-discrimination provision making it unlawful for any public authority, when carrying out its functions relating to Northern Ireland to discriminate on the ground of religious belief or political opinion, or to aid or incite such discrimination (s 76).

Fourth Stage The fourth stage of development of anti-discrimination law in Northern Ireland, occurring since the turn of the millennium, has further updated the previous legislation and added protection for more groups based around the criteria of age and sexual orientation. The Employment Equality (Sexual Orientation) Regulations (NI) 2003 prohibited discrimination on grounds of sexual orientation in employment and vocational training. This was supplemented by the Equality Act (Sexual Orientation) Regulations (NI) 2006, which extended the protection to goods, facilities and services. The Employment Equality (Age) Regulations (NI) 2006 prohibited discrimination on the grounds of a person’s age in employment or vocational training. The Disability Discrimination (NI) Order 2006 imposed new duties on public authorities to pay due regard to the need to promote positive attitudes towards disabled persons and encourage participation by disabled persons in public life. There have also been various regulations in the last decade that have extended protections in each of the areas covered by legislation, namely religious belief, political opinion, gender (now including marital or civil partner status, gender reassignment, pregnancy and maternity), race, disability, age and sexual orientation. For many of these changes, statutory instruments were introduced to implement a number of EU equality directives.

EU Equality Directives EU directives, once adopted, must be fully implemented in each Member State, usually by domestic legislation. Supplementary non-discrimination legislation has been required in Northern Ireland to comply with each of the EU’s equality directives, including those on gender (various Equal Treatment Directives

266

Debbie Kohner

1975–2006), racial or ethnic origin (Race Directive 2000/43/EC), and age, religion or belief, disability and sexual orientation (Framework Directive 2000/78/EC). It is worth noting that, in the Framework Directive (2000/78/EC), which applies throughout the EU, specific provision is made for two particular circumstances in Northern Ireland. Article 15 allows for measures to be taken which will ‘tackle the under-representation of one of the major religious communities in the police service of Northern Ireland,’ so that ‘differences in treatment regarding recruitment into that service, including its support staff, shall not constitute discrimination in so far as those differences in treatment are expressly authorised by national legislation’. Moreover, Article 15(2) notes that: [I]n order to maintain a balance of opportunity in employment for teachers in Northern Ireland, while furthering the reconciliation of historical divisions between the major religious communities there, the provisions on religion or belief in this Directive shall not apply to the recruitment of teachers in schools in Northern Ireland in so far as this is expressly authorised by national legislation.

Both of these are provisions are formulated in a manner which would allow the UK to end them through domestic legislation, when deemed appropriate. This has already occurred in relation to the so-called 50:50 recruitment quota system, which applied to the Police Service of Northern Ireland until it was ended in 2011.

Patchwork of Provisions As a result of the incremental changes to non-discrimination legislation in Northern Ireland, the resultant statutory framework is piecemeal, complex, inconsistent and incomplete. The inconsistencies are clear. Within the race relations legislation, for example, there is different protection for colour and nationality as opposed to race and ethnic or national origin. Other inconsistencies include: — the concept of ‘indirect discrimination’ does not apply in the same way to all equality groups; — protection against discrimination due to incorrect perception does not exist in relation to sex or disability, but it does exist in relation to the other equality groups; — protection against discrimination by association does not apply in relation to sex, disability or age (although EU case law may be determinative in these areas); — age discrimination is only prohibited in employment and training settings while, for other equality groups, discrimination is also prohibited in relation to access to goods, facilities and services; and — in the exercise of public functions there is limited protection in relation to sex discrimination as compared with other forms of discrimination.

The Equality Framework in Northern Ireland

267

As a whole, our equality legislation creates a hierarchy of inequalities. The law in this area is also unduly complex. There are over 80 separate pieces of legislation, conferring differing levels of protection, which is confusing for employers, service providers and, most importantly, individuals who may suffer discrimination. This raises serious concerns regarding access to justice, as it is difficult for an individual to navigate all of the legislation. In addition, there is no state legal aid available in this area, and the Equality Commission and local advice centres have limited resources. In its concluding observations on the UK in 2003, the UN Committee on the Elimination of Racial Discrimination (CERD) stated that ‘inconsistencies in discrimination laws and differential levels of protection according to the categorisation of discrimination would create difficulties for the general public as well as law enforcement agencies’. Many of these inconsistencies have since been cured in Great Britain through the Equality Act 2010, but that legislation does not apply in Northern Ireland. Several UN and Council of Europe treaty bodies have recommended introducing a single comprehensive law, consolidating primary and secondary legislation, to provide for the same protection from all forms of discrimination in Northern Ireland. Most recently, CERD stated in 2011 that immediate steps should be taken to ensure that a single equality law is adopted in Northern Ireland and the Committee on the Elimination of Discrimination against Women (CEDAW) stated in 2013 that the legislation in Northern Ireland should be revised to ensure that protection is afforded to women on an equal footing as in Great Britain, including recognition of multiple discrimination.

A Single Equality Act ? In fact, there have been efforts to introduce a Single Equality Bill for Northern Ireland over the last 13 years, but they have been unsuccessful. This is mainly due to a lack of consensus between the political parties within the Northern Ireland Executive. Under the Northern Ireland Act 1998, equality is a devolved matter and, as such, is within the legislative competence of the Assembly. Within the Northern Ireland Executive, equality sits within the portfolio of the Office of the First Minister and the Deputy First Minister (OFMDFM) and, in practice, is overseen by the two Junior Ministers in that Department (one from each of the two main communities—unionist and nationalist). Agreement is required across the political divide for any equality legislation to be passed and this has proved difficult to achieve. During the first Assembly, in May 2001, OFMDFM released a discussion document on a Single Equality Bill which would ‘enable us to harmonise our anti-discrimination laws as far as practicable and to consider the extension of protection to new categories’. In particular, OFMDFM stated that the Bill ‘will not involve a reduction in protection offered by current laws’. Following the

268

Debbie Kohner

Assembly’s suspension in October 2002, the matter was pursued by officials under direct rule. The aims were to harmonise the then existing anti-discrimination legislation relating to religious belief, political opinion, gender, race and disability, to extend the legislation to age and sexual orientation, and to address the EU developments in the Race and Framework Directives. Several consultations took place between 2003 and 2006, including the circulation of a green paper. Non-governmental groups, as well as the Equality Commission, supported the proposal for a Single Equality Bill, arguing that it should: — — — — — — —

be broad in scope, develop clear definitions and clarify exemptions; harmonise current provisions upwards; simplify and streamline procedures; conform to EU law and to good international practice; seek to achieve measurable and real equality outcomes; encourage positive action; and establish clear structural and procedural remedies.

In 2006, the UK and Irish governments and the main political parties in Northern Ireland agreed in the St Andrew’s Agreement to ‘work rapidly to make the necessary preparations so that legislation can be taken forward by an incoming Executive at an early date’ in relation to a Single Equality Bill. However, once power was transferred to the devolved Assembly in 2007, progress on a Single Equality Bill reached a stalemate. Only two weeks after devolution, there was a motion to ‘bring forward harmonising legislation, in a Single Equality Bill, for discussion and consultation at the earliest opportunity’, given that discrimination operates in many different ways and at many different levels. The motion was defeated by three votes and, since then, all work on a Single Equality Bill appears to have ceased. In an answer to an Assembly Question issued on 9 November 2012, the First and Deputy First Ministers indicated that ‘there are currently no plans to develop a Single Equality Bill here’. In the meantime, discrete pieces of legislation have been passed in an attempt to fill the gaps in the equality framework. At least eight sets of regulations have been adopted in relation to disability, race, gender and other areas. In the most recent Programme for Government, the Executive has committed itself to further legislation to extend age discrimination legislation to the provision of goods, facilities and services. A gender strategy was drawn up for 2006–16 and a disability strategy was adopted in 2012, but consultations on strategies relating to sexual orientation, race and ‘active ageing’ did not begin until 2014. However, further pieces of discrete legislation will only increase the number and complexity of Northern Ireland’s anti-discrimination legislation. In addition, the various equality strategies, while welcome, will not provide an alternative to legislative protection. Therefore, despite the difficulties in achieving a Single Equality Bill for Northern Ireland in our current political climate, many campaigners continue to advocate for its introduction.

The Equality Framework in Northern Ireland

269

The Equality Commission for Northern Ireland The Equality Commission for Northern Ireland was established in 1999 by section 73 of the Northern Ireland Act 1998. The same statute dissolved the previous equality bodies operating in Northern Ireland, namely the: — — — —

Fair Employment Commission for Northern Ireland; Equal Opportunities Commission for Northern Ireland; Commission for Racial Equality for Northern Ireland; and Northern Ireland Disability Council.

The Equality Commission took over all the functions previously exercised by those bodies. In addition, provision was made for the new Equality Commission to create Consultative Councils, although to date no such Councils have been created. Following the UK’s ratification of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) in 2009, the Equality Commission was also mandated, along with the Northern Ireland Human Rights Commission, to fulfil the role of Independent Mechanism (which is required under Article 33(2) of UNCRPD). In May 2013, the Executive announced that the Equality Commission’s remit, roles and responsibilities would be amended to incorporate additional functions into an Equality and Good Relations Commission, to include some of the functions currently entrusted to the non-statutory Community Relations Council. At the time of writing, a draft legislative text had not yet been published for consultation. The Equality Commission is headed by a Chief Commissioner, a Deputy Chief Commissioner and between 14 and 20 Commissioners representative of the community, each of whom is appointed by the Secretary of State under the Northern Ireland Act 1998. It is a non-departmental public body and its sponsoring department is OFMDFM. In the financial year 2012–13 the Commission employed 116 whole-time equivalent staff and received a budget of £6,200,000. It is housed at Equality House, in central Belfast, which it now shares with the Northern Ireland Commissioner for Children and Young People and the Northern Ireland Commissioner for Older People. The Equality Commission’s current mission is ‘to improve people’s lives through the responsible and effective use of our powers’. It has slightly different functions depending on the equality legislation which is engaged. In summary, the Equality Commission’s functions under non-discrimination legislation relate to the following (where the functions apply in some areas only, this is indicated): — working towards the elimination of discrimination (and harassment in relation to gender, disability and, except in employment situations, sexual orientation); — promoting equality of opportunity — promoting affirmative action in respect of religious belief and political opinion;

270

Debbie Kohner

— promoting good relations between persons of different racial groups; — taking steps to encourage good practice in the treatment of disabled persons; — keeping under review the relevant legislation and drawing up, and submitting to OFMDFM, proposals for amending the relevant legislation; — making proposals or giving other advice to any public authority as to the practical application of any law; — giving financial or other assistance to any persons concerned with research, and any educational activities, which appear necessary or expedient for the Commission’s duties to be carried out — or undertaking its own research, training, conferences and other information dissemination; — giving financial or other assistance to any persons concerned with the promotion of equality of opportunity, and good relations (in relation to race and, as far as access to goods, facilities and services is concerned, sexual orientation); — issuing codes of practice for practical guidance on the elimination of discrimination and promotion of equality of opportunity; and — identifying and reviewing the existence or absence of equality of opportunity, and how the former can best be achieved (in relation to religious belief or political opinion). OFMDFM’s Together: Building a United Community Strategy (May 2013) envisaged additional functions for the proposed new Equality and Good Relations Commission, which would include statutory duties to provide independent advice and scrutiny for the new Strategy, such as: — advice, assessment and challenge to government, including on action plans; — research and evaluation on good relations issues; — promotion of good relations across all sections of the community and best practice across the public service and the private sector; — scrutiny of the programme for delivery of good relations by district councils; and — a regional advisory role to individuals and groups working on good relations issues. In addition, the Equality Commission has various functions in relation to section 75 of the Northern Ireland Act 1998, which places statutory equality and good relations duties on public authorities. This function will now be considered in more detail.

Section 75 of the Northern Ireland Act 1998 Distinct from Non-discrimination Legislation The equality duty introduced by section 75 of the Northern Ireland Act 1998 is distinct from all earlier efforts to counter discrimination. Section 75 requires

The Equality Framework in Northern Ireland

271

designated public authorities to have due regard to the need to promote equality of opportunity when carrying out their functions in Northern Ireland. There are four key ways in which this positive equality duty can be distinguished from earlier anti-discrimination initiatives. First, the new equality duty, unlike anti-discrimination legislation, is anticipatory in that it tries to avoid, rather than retrospectively punish, inequality of treatment. Section 75 encourages public bodies to think in advance about their actions with a view to avoiding behaviour that will have an adverse impact on certain social groups and taking steps that will better promote equality of opportunity. Second, section 75 moves the focus away from discrimination per se to acts or behaviour that have or might have an adverse impact. The existence of an adverse impact is much easier to demonstrate than discriminatory behaviour, as it does not make anyone susceptible to legal action and requires only an examination of possible mitigating or alternative approaches on the part of the authority concerned. Third, the operation of section 75 requires direct consultation with those likely to be most affected. In so doing, policy-making itself has changed, as the people most affected by decisions are drawn into the decision-making process itself rather than being able only to seek redress after the fact. The participative element of section 75 made it truly ground-breaking. Finally, section 75 places the onus of addressing inequalities on the shoulders of public authorities, rather than on those individuals who have suffered discrimination. Although it remains necessary that individuals are able to assert their rights under anti-discrimination legislation, this is an insufficient mechanism for addressing all inequalities in our society. Litigation is not always an attractive option, given the costs and stress involved. It is neither appropriate nor realistic for individuals (who have already suffered discrimination) to be responsible for achieving the universal changes required. For all these reasons, a positive equality duty was advocated by many organisations and individuals working to end discrimination and promote equality. The organisation included the Standing Advisory Commission on Human Rights, the statutory equality bodies and the Committee on the Administration of Justice. A forum of groups and individuals came together to lobby, first for the effective implementation of the Policy Appraisal and Fair Treatment (PAFT) guidelines (an administrative precursor to section 75) and then for the inclusion of a statutory equality duty in the Belfast (Good Friday) Agreement. The forum came to be known as the Equality Coalition. It now has over 80 member groups and can be approached by anyone wishing to understand better the importance and potential of section 75. The Equality Commission, of course, can also be approached. At the same time, section 75 has its critics, many of whom find the duty to be overly bureaucratic and process-led, instead of setting more tangible outcomes. Even its proponents would accept that it offers weaker enforcement options than anti-discrimination legislation for individuals seeking a remedy. However, section 75 has already achieved real change in policy-making, through mainstreaming

272

Debbie Kohner

equality at all levels of policy development and implementation, thereby helping to promote equality of opportunity.

The Scope of Section 75 Section 75(1) states: A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity: (a) between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation (b) between men and women generally (c) between persons with a disability and persons without and (d) between persons with dependants and persons without.

Section 75(2) states: Without prejudice to its obligations in subsection 1, a public authority shall in carrying out its functions relating to Northern Ireland have regard to the desirability to promote good relations between persons of different religious belief, political opinion or racial group.

Some of the elements of section 75 have been fleshed out by further provisions in the Northern Ireland Act 1998, through parliamentary debate or by the Equality Commission itself, as explained below.

‘Public Authorities’ Public authorities are defined in section 75(3) largely by reference to other statutory instruments. The listing is extensive and includes government departments, Education and Library Boards, Health and Social Service Trusts, local councils and a wide variety of agencies. It is also worth noting that some public authorities are not designated under section 75, including the BBC, schools and HM Treasury (the latter two of which are designated under the equivalent public sector equality duty in Great Britain: see Equality Act 2010, s 149). Designation of further public authorities is also provided for within the definition of public authorities. Under section 75(3)(d) it is open to the Secretary of State to designate ‘any other person’ as a public authority. Indeed, designation orders were passed by the Secretary of State each year from 2001 to 2004. In addition, as and when new public bodies are created, specific designations may be included in a designation order, or within the legislation establishing the body itself. Thus, the Chief Constable of the Police Service of Northern Ireland, the Northern Ireland Policing Board and the Police Ombudsman for Northern Ireland were designated in the Police (NI) Act 2000.

The Equality Framework in Northern Ireland

273

A full list of all current public authorities obliged to comply with section 75 can be requested from the Equality Commission or found on its website.

‘Carrying Out its Functions in Relation to Northern Ireland ’ A public authority must comply with section 75 when ‘carrying out its functions’. Section 98(1) of the Northern Ireland Act 1998 defines ‘functions’ expansively, as including powers and duties. During the parliamentary debate on the Act a government minister made it clear that: impact assessments should relate to the general run of a public authority’s policies. It is not intended that the assessment should be restricted only to policies aimed at promoting equality of opportunity (Lord Dubs, 11 November 1998, HL Debs, col 814).

In addition, the Equality Commission’s guidance makes clear that section 75 applies to ‘any strategy, policy (proposed/amended/existing) or practice and/or decision, whether written or unwritten’, including in the spheres of employment and procurement. A specific exemption is provided for the functions of the Director of Public Prosecutions for Northern Ireland relating to the prosecution of offences (s 75(4) (A)). It is believed that this exemption should be interpreted as applying to individual prosecution decisions, as opposed to general prosecutorial policy and its application. Section 75 applies only to those functions of the public authority that relate to Northern Ireland. As a result, it is possible to designate UK-wide or cross-border public authorities under section 75, but the duty would then apply only when that authority is carrying out functions in relation to Northern Ireland. UK-wide public authorities that have been designated include the British Council, the Open University and the Big Lottery Fund. Examples of all-Ireland designated bodies include InterTrade Ireland and Waterways Ireland.

‘Due Regard to the Need to Promote Equality of Opportunity’ The Equality Commission makes clear that the ‘promotion of equality of opportunity entails more than the elimination of discrimination. It requires proactive measures to be taken to facilitate the promotion of equality of opportunity’. It also makes clear that, in order to address disadvantage or inequalities suffered by particular sections of society, a public authority may take action (including affirmative action or positive action measures) to promote equality of opportunity. ‘Due regard’ is set out by the Equality Commission in its guidance to mean that ‘the weight given by a public authority to the need to promote equality of opportunity is proportionate to the relevance of the particular duty to any function of the public authority’. For the similar GB public sector equality duty (PSED), Dyson LJ defined ‘due regard’ as

274

Debbie Kohner

the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing. (R (Baker) v Secretary of State for Communities and Local Government (2008))

In that case the Court of Appeal found that the PSED is not a duty to achieve a particular result, but a duty to consider the need to achieve certain goals. This approach was applied to the meaning of ‘due regard’ in section 75 by the High Court in Northern Ireland in the judgment about tasers (Re JR21’s Application (2011)). In the same case, Sir Declan Morgan LCJ referred to another case in England and Wales which summarised some key principles for ‘due regard’ (R (Brown) v Secretary of State for Work and Pensions (2008)). These principles were confirmed and added to by the Court of Appeal in England and Wales (R (Domb) v London Borough of Hammersmith and Fulham (2009)). They can be summarised as follows: — the duty must be fulfilled before and at the time of the decision, not as justification after the fact; — the duty is to have due regard, not to achieve results or to refer in terms to the duty (although it is good practice to keep an adequate record); — the test of whether a decision-maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking; — the duty must be performed with vigour and with an open mind; — it is a continuing duty; and — it is a non-delegable duty. Although slightly different from the PSED, section 75 would likely require an equivalent or stronger standard of ‘due regard’, due to its constitutional origins. In the words of one leading academic in this area, Professor Christopher McCrudden, due regard at least imposes a requirement that any function exercised by the public body must be exercised giving considerable weight to the importance attached to equality of opportunity in the [Northern Ireland] Act. This duty is not just a statutory duty; it is a constitutional duty and should therefore be accorded considerable weight. The body, must, of course, act reasonably. Perhaps most importantly, it must also act in a proportionate manner. By this is meant, to put it simply, that the public authority accord weight not only to administrative considerations but also the strength of the interest in equality.

‘Regard to the Desirability to Promote Good Relations’ There is a clear hierarchy in the legislation between the equality duty (at s 75(1)) and the good relations duty (at s 75(2)), with the former having precedence. The Secretary of State at the time stated that: [W]e regard equality of opportunity and good relations as complementary. There should be no conflict between the two objectives. Good relations cannot be based on

The Equality Framework in Northern Ireland

275

inequality between different religions or ethnic groups. Social cohesion requires equality to be reinforced by good community relations. (Mo Mowlam MP, HC Deb 27 July 1998, vol 317, col 109)

As a result, the statutory drafters ensured that the good relations duty was endowed with weaker language—requiring ‘regard to the desirability’ of promoting good relations instead of ‘due regard to the need’ to promote equality of opportunity. Furthermore, the drafters set out that the good relations duty is ‘without prejudice’ to the equality duty, and the Equality Commission has clearly stated that ‘the term due regard was intended to be, and is, stronger than regard’. In addition, the two duties are treated somewhat differently in Schedule 9 to the Northern Ireland Act 1998, which sets out distinct means of implementing the equality and the good relations duties. However, in its Guide on section 75 (2010), the Equality Commission has recommended that all Schedule 9 obligations for the application of the equality duty should also be applied to the good relations duty. This has generally been followed by most public authorities. Either way, both the equality of opportunity duty and the good relations duty must be carried out when a public authority carries out its functions in relation to Northern Ireland.

‘Between Persons of Different …’ The categories of persons covered by section 75(1), the equality duty, are persons of different religious belief, political opinion, race, age, marital status, sexual orientation, gender and disability, and carers. This list has its roots in the PAFT guidelines, which covered the same categories. It is intended that there be no hierarchy between these various categories, and that multiple identities should be considered when applying section 75. The Equality Commission has stated that it will consider the extension of the categories, but there is no current move to do so (although public authorities can apply the section to other categories voluntarily). The categories of persons covered by section 75(2), the good relations duty, are limited to religious belief, political opinion and race. It is possible that this shortlist derived from two distinct reference points. First, the Belfast (Good Friday) Agreement refers to the need for ‘mutual respect for the identity and ethos of both communities and parity of esteem’, which (on one view) encapsulates religious belief and political opinion. Second, the Equality Commission was already committed, under the Race Relations (NI) Order 1997, to ‘promote good relations between persons of different racial groups generally’ (art 42(2)(b)). It should be noted as well that the 1997 Order had already imposed a duty on district councils in Northern Ireland to promote good relations between persons of different racial groups (art 67(b)).

276

Debbie Kohner

The application of section 75 Schedule 9 to the Northern Ireland Act 1998 provides more detailed information on how section 75 is to be applied, monitored and enforced. The Equality Commission plays an important role in managing each of these functions.

Equality Schemes Equality schemes provide the central mechanism through which section 75 is applied and enforced. Paragraph 4(1) of Schedule 9 states that an equality scheme ‘shall show how the public authority proposes to fulfil the duties imposed by section 75’. Public authorities must develop, and consult on, an equality scheme and submit it to the Equality Commission within six months of designation (or of a request by the Equality Commission for a new or revised scheme). The Equality Commission must either approve the scheme (if it complies with all requirements) or refer it to the Secretary of State, who can approve it, request revisions, or make a scheme for the public authority concerned. In practice, the Equality Commission will negotiate with public authorities where possible, instead of referring an equality scheme to the Secretary of State. If the relevant public authority is a government department, the Equality Commission can only approve it or ask for a revised scheme. The Equality Commission can also (in writing) exempt a designated public authority from producing an equality scheme in relation to all or some of its functions. It is worth noting that, even when exempt from producing an equality scheme, designated public authorities must still comply with its section 75 duties. However, parliamentary debate at the time of the passage of the Northern Ireland Act made clear that such exemptions would occur only in limited circumstances: We intend the exception to be used only in rare circumstances—for instance, when public authorities’ activities in Northern Ireland are minimal, and the effort involved in preparing the scheme, and having it validated by the Commission, would be disproportionate. In other circumstances, it might make sense to exempt a public authority. (Paul Murphy MP, HC Deb 18 November 1998, vol 319, col 1069)

Apart from local council sub-committees (which are covered by the council’s general equality schemes), the Equality Commission has thus far exempted 10 public authorities from producing an equality scheme. The reasons cited are generally that the activities of the public authority and their potential impact on equality of opportunity are minimal, and so the effort involved in preparing an equality scheme would be disproportionate. Indeed, public authorities must devote staff time and other resources to preparing and applying an equality scheme. In particular, equality schemes must set out certain arrangements for the application of section 75, which are listed in Schedule 9 and include:

The Equality Framework in Northern Ireland

277

— the authority’s arrangements for assessing compliance with the section 75 duties, and for consulting on matters to which a duty under section 75 is likely to be relevant (including persons to be consulted); — arrangements for assessing and consulting on the impact on equality of opportunity of policies adopted or proposed; — arrangements for monitoring any adverse impact of such policies; — arrangements for publishing the results of the assessments of equality impacts, including: — measures which might mitigate any adverse impact, and alternative policies which might better achieve the promotion of equality of opportunity; — arrangements for publishing the monitoring of adverse impacts; — arrangements for training staff; — arrangements for ensuring and assessing public access to information and services; — the timetable for measures proposed in the scheme; — details of how the scheme will be published; — arrangements for dealing with complaints; and — a commitment to hold a review of the scheme within five years.

Equality Commission Guidance In addition, Schedule 9 states that the equality schemes must conform to any guidelines as to form or content which are issued by the Equality Commission with the approval of the Secretary of State. The Equality Commission has released three versions of such Guidelines in 2001, 2005 and 2010. In each case, the Equality Commission released the Guidelines within a larger guide, which contains more information on section 75 and how it operates (the Guide). In each version of the Guide, the Equality Commission has requested that public authorities include the following in their equality schemes (in addition to what is specified in Schedule 9): — a general introductory statement specifying the purpose of the scheme and the public authority’s commitment to section 75, signed by the most senior staff and including a commitment to the allocation of resources necessary to comply with section 75 and to implement the scheme effectively and on time; — a commitment to conduct an annual review of progress and implementation of the scheme, to be forwarded to the Equality Commission by 31 August each year; — detailed principles on consultation (which go beyond that referred to in Schedule 9); — a ‘screening’ procedure (set out by the Equality Commission) to identify those policies that are likely to have an impact on equality of opportunity, and so are more relevant to section 75; and

278

Debbie Kohner

— an ‘equality impact assessment’ (EQIA) procedure (set out by the Equality Commission), as a thorough and systematic analysis of a policy to determine the differential or adverse impact on section 75 categories. In addition to the 2010 Guide, the Equality Commission released a model equality scheme on which public authorities can base their own equality schemes. This included all requirements set out above, and also best practice for matters such as accessibility to public authorities’ information and services, dealing with complaints, monitoring more broadly than on adverse impacts, and revising policies where more adverse impact than expected is found from such monitoring. Most public authorities have adopted the Equality Commission’s model equality scheme. It avoids the time required to create a new scheme, and makes approval by the Equality Commission more likely. It also helps civil society to engage more effectively in the section 75 process, as one can expect nearly the same procedures from each designated public authority. Of course, it is also important for public authorities to adapt and add to the model equality scheme, in order to make it appropriate to their own functions and internal procedures.

Screening and EQIAs The Equality Commission’s recommended screening procedure is set out in an Annex to its 2010 Guide. It provides for public authorities to collect basic information on each policy and consider quantitative and qualitative information on the likely impact of the policy on each section 75 category (given their needs, experiences and priorities). They must also consider whether opportunities exist to better promote equality of opportunity for each category. Once completed, the screening template should be published. The public authority’s consultees should be informed every three months of all the equality screenings that have taken place during that period. If no impact is found, the public authority can ‘screen the policy out’ and so continue developing or implementing the policy. If a minor impact is found, the public authority may ‘tweak’ the policy in order to better promote equality of opportunity or to mitigate any adverse impact. If a major impact is found, the public authority should proceed to a full EQIA. An important caveat to this procedure is that, if a stakeholder or consultee raises a concern with supporting evidence about a screening decision, a public authority should consider screening its policy again. This could force a public authority to proceed to a full EQIA, even when a minor, or no, impact was initially found. An EQIA is a more detailed review of a policy’s likely impacts, and how it could better promote equality of opportunity for the section 75 categories. The Equality Commission published Practical Guidance on EQIAs in 2005. It involves a sevenstep process, namely: 1. defining the aims of the policy;

The Equality Framework in Northern Ireland

279

2. considering available data and research; 3. assessing the impacts; 4. considering the measures which might mitigate any adverse impact and alternative policies which might better achieve the promotion of equality of opportunity; 5. consulting (the process should be accessible and allow at least 12 weeks for responses); 6. deciding on how to proceed and publishing a report on the results of the EQIA; and 7. monitoring for adverse impact in the future and publishing the results of such monitoring. An EQIA is time consuming for policy-makers, but it has the potential to make better policies for all in our society and so could save time and money in the long run.

Audits of Inequalities and Action Plans In addition to the above, the 2010 Guide recommends that each designated public authority undertake an audit of inequalities, from which it should develop an action plan. This initiative derived from the Equality Commission’s 2007 Effectiveness Review which found that it was difficult to identify the impact of section 75 on individuals. Given the procedural framework of section 75, it was found that outcomes could be overlooked and that specific action measures and targets could help facilitate the promotion of equality of opportunity, which is the ultimate aim of section 75. An audit of inequalities is described as a systematic review and analysis of inequalities which exist for those affected by a public authority’s policies. This involves collecting data, which is then disaggregated by section 75 category and analysed to inform the setting of action measures to promote equality of opportunity. These action measures should be specific, measurable, linked to achievable outcomes, realistic and timely. They should be included in a public authority’s business planning and reviewed and monitored through performance indicators and timescales for their achievement. Pursuant to the Equality Commission’s 2010 Guide, most designated public authorities have carried out audits of inequalities and adopted action plans. As set out in the Guide, public authorities have generally consulted on action plans, and submitted them to the Equality Commission with their new equality schemes. The Guide does not explicitly ask for publication or consultation of audits of inequalities. To some this is unfortunate, given that these documents provide the evidence base for the action plans and that civil society could provide constructive input to their development. Although the audit of inequalities and action plan are welcome additions to the section 75 framework, they should not distract from the central purpose of

280

Debbie Kohner

section 75. The intention is to mainstream equality into all policy-making, and not restrict it to certain action measures. Also, the audit of inequalities must be regularly updated in order to retain awareness of newly emerging evidence or inequalities. However, with these points borne in mind, the audits of inequalities and action plans could help progress equality in Northern Ireland. The action plans could provide for specific outcomes, and the audits of inequalities could help direct public authorities to the evidence available when applying section 75 (especially for screenings and EQIAs).

Equality Commission Advice Under Schedule 9, the Equality Commission has a duty to offer advice to public authorities and others in connection with section 75. The Equality Commission responds to requests for advice by designated public authorities and also offers discrete pieces of advice in relation to those policies that are particularly important for the promotion of equality of opportunity (through meetings, letters or submissions to consultation exercises). In addition, the Equality Commission has published several documents to help public authorities and civil society understand section 75 and the action required to comply with it fully. As well as the general Guide on section 75, the model equality scheme and the Guidance on EQIAs, the Equality Commission has released the following (many of which are also available in summary or easy-read formats): — Realising Outcomes from the Section 75 Equality Duties: Advice to Public Authorities (2011); — Let’s Talk, Let’s Listen: A Guidance for Public Bodies on Consulting and Involving Children and Young People (2008); — Equality of Opportunity and Sustainable Development in Public Sector Procurement (2008); — Promoting Good Relations—A Guide for Public Authorities (2008); — Section 75 Monitoring Guidance—For Use by Public Authorities (2007); and — Guidance on Five Year Review of Equality Schemes by Public Authorities (2005).

Problems in the Application of Section 75 Despite the Equality Commission’s advice and guides, and much input from the community and voluntary sector, many public authorities do not apply section 75 correctly, or at all, which undermines its effectiveness. We can identify four key issues, which are examples of public authorities’ approach to section 75 and which could undermine its operation and objectives.

The Equality Framework in Northern Ireland

281

First, public authorities often apply section 75 in a procedural, as opposed to substantive, manner. This was one of the central problems identified in a review of section 75 published by the Equality Commission in 2008. Second, public authorities often do not refer to underlying data and this prevents them from understanding how their policies may impact upon minorities. Where data are used, and a particular equality group is found to be impacted upon to a greater extent by a policy, public authorities have sometimes found this to be due to ‘self selection’ or an irregularity of data, rather than analysing the impacts on equality. Third, there is at times a fundamental misunderstanding of the concept of ‘equality of opportunity’. For example, public authorities often find that the ‘universal application’ of their policies allows for a positive or neutral impact on all equality groups. This does not take account of the possibility of indirect discrimination and the need to facilitate the participation of disadvantaged groups which might have barriers to accessing services. Finally, many public authorities carry out assessments of equality impacts only after the proposed policy has been decided upon or even adopted. It is now settled jurisprudence that public authorities should not formulate policy before undertaking an equality impact assessment. Otherwise, the impact assessment could amount to ‘policy-based evidence rather than evidence-based policy’ (R (Kaur and Shah) v London Borough of Ealing (2008)). Indeed, several Council of Europe and UN treaty-monitoring bodies have recommended that impact assessments be more effectively implemented in the UK, including Northern Ireland (see Committee on Economic, Social and Cultural Rights 2009, CERD 2011 and the Framework Convention for the Protection of National Minorities 2011).

Monitoring and Enforcement of Section 75 The effective monitoring and enforcement of the application of section 75 is crucial. Under Schedule 9, the Equality Commission has a duty to keep under review the effectiveness of the duties imposed by section 75. In practice, the Equality Commission has acted under this duty once, through commissioning studies on various aspects of section 75, and publishing the results in an Effectiveness Review in 2008. The Effectiveness Review found that section 75 had brought about substantial change in policy-making, through ensuring an evidence-base and consultation process. However, the impact of section 75 on individuals was less clear, and a more outcome-focused (as opposed to procedure-focused) approach was recommended. The Equality Commission committed to increase awareness of section 75 and to encourage its application early in the development of policies, including high-level policies.

282

Debbie Kohner

It is expected that the Equality Commission will undertake another formal review of the effectiveness of section 75 in the future. In the meantime, under paragraph 5 of Schedule 8 to the Northern Ireland Act 1998, the Equality Commission must report on ‘any steps which, during the year, have been taken by it and other public authorities to promote such equality of opportunity as is mentioned in section 75(1)’. In practice, the Equality Commission facilitates this by requesting each designated public authority to submit an annual review. In addition, under Schedule 9, the Commission must be informed of the outcome of each of the designated public authorities’ five year reviews of their equality schemes.

Enforcement of Section 75 The Equality Commission is also charged with the enforcement of section 75, through Schedule 9, which sets out complaint and investigatory procedures for the failure of a public authority to comply with its equality scheme. These provisions have been supplemented by the Equality Commission’s ‘Investigation Procedure’, the most recent version of which was published in 2010. Paragraph 10 of Schedule 9 sets out formal requirements for a person to make a complaint about a public authority’s failure to comply with its equality scheme. If these are fulfilled, the Equality Commission must either investigate the complaint or give reasons for not investigating it. The Equality Commission has set out that these reasons could include: the lack of an arguable case; the subsequent (commitment to) compliance by the public authority; the fact that anti-discrimination legislation provides a more appropriate form of address; or the fact the issue complained about is already under investigation. The four formal requirements for a person to make a complaint to the Equality Commission under paragraph 10 are that: 1. the complaint must first be brought to the notice of the relevant public authority, which should be given a reasonable opportunity to respond (generally one month will suffice); 2. the complaint must be in writing; 3. the complaint must be sent to the Equality Commission within 12 months, starting with the day the complainant first knew of the matters alleged; and 4. the complaint must be made by a person who claims to have been directly affected by the failure. A difficulty arises for those, such as children, who are ‘directly affected’ but cannot bring a complaint themselves. The Children’s Law Centre has argued that, in such situations, representatives of those directly affected should be able to make a formal complaint on their behalf. The issue was considered during an application for judicial review (see below) in relation to anti-social behaviour orders (ASBOs), where the High Court found that the Children’s Law Centre could not

The Equality Framework in Northern Ireland

283

be directly affected or fall within the formal requirements of Schedule 9 (Re Neill’s Application, 2005). The issue was not pursued when that case went to the Court of Appeal. It is possible that a representative organisation could be found to be ‘directly affected’ in the future, in a different fact scenario. In addition, the Equality Commission has also committed within its Investigation Procedure that, when considering whether to undertake an investigation under paragraph 11 (see below), it will take into account those situations where a complaint would be unlikely to be pursued by a person who is directly affected, such as a child. Paragraph 11 allows the Equality Commission to undertake an investigation where it believes that a public authority has failed to comply with an equality scheme. The origins of this ‘belief ’ can come from within the Equality Commission or from a third party. Paragraph 11 also sets out the procedure that must be followed for any section 75 investigation, whether it originates from a third party’s complaint or from an Equality Commission belief that an equality scheme has been breached. This procedure has been supplemented by the Equality Commission’s Investigation Procedure. The Equality Commission’s Statutory Duty Investigations Committee (SDIC) advises it on a potential section 75 investigation, which must be authorised by the full Commission. The investigation is then carried out by an investigation officer, who provides a draft report to the SDIC, including recommended action. From this, the SDIC shares a draft report and recommendations with the parties for their comments, before forwarding it to the full Commission for approval. Under Schedule 9, the approved investigation report must then be sent to the public authority concerned, the complainant (if there is one), the Secretary of State and the Northern Ireland Assembly. If the investigation report recommends action to be taken by the public authority, and if the Equality Commission considers that such action has not been taken within a reasonable time, the Equality Commission may refer the matter to the Secretary of State, who may give directions to the public authority concerned. Where this occurs, the Assembly must also be informed in writing. Since the passage of the Northern Ireland Act, relatively few investigations (about 20) have taken place, particularly under the Equality Commission’s own motion. Although Parliament has entrusted the Equality Commission with the enforcement of section 75, it has not endowed it with complementary powers to ensure that this occurs. It has no powers of discovery and cannot enforce the performance of any recommendations in an investigation report. In addition, it can only investigate a breach of a scheme, which limits its investigations to procedural impropriety. It is possible, of course, for substantive breaches of section 75 to be caught within the procedural trap, but the mechanism unduly emphasises the procedural aspects of the duties. However, the High Court has stated that the powers of investigation in Schedule 9 envisage a dynamic role for the Equality Commission (see Re Neill’s Application, 2005). To that end, the Equality Commission will comment on substantive aspects

284

Debbie Kohner

of an impact assessment and suggest actions in ways that go beyond what the High Court would say in a judicial review. Unfortunately, investigations take at least four months to complete and, although the Equality Commission will consider expedited action, resolution is generally slow. In some situations this might make it difficult to achieve a wholly satisfactory result, as policies could be further developed or implemented in the meantime. The OFMDFM’s 2013 Strategy, Together: Building a United Community, envisages that the proposed new Equality and Good Relations Commission will have statutory duties ‘to enforce and investigate as appropriate where there is a failure to comply with section 75(2)’. It is not yet clear if this function will involve new powers or rely on the enforcement procedure for equality schemes as set out in paragraphs 10 and 11 of Schedule 9.

Judicial Review As a result of the limitations of the section 75 investigation procedure, several people and organisations have attempted to enforce section 75 through applications for judicial review. This is the enforcement procedure for the equivalent public sector equality duty in Great Britain under the Equality Act 2010, section 149. However, attempts to enforce section 75 through judicial review in Northern Ireland have thus far met with little success. Two particular cases merit mention. First, in Re Neill’s Application (referred to above), Sir Brian Kerr LCJ stated in the Court of Appeal that judicial review would not normally be available to enforce section 75, contrasting the position under section 75 with that under section 76 (which outlaws discrimination in the exercise of public functions): The juxtaposition of sections 75 and 76 with contrasting enforcing mechanisms for the respective obligations contained in those provisions strongly favours the conclusion that Parliament intended that, in the main at least, the consequences of a failure to comply with section 75 would be political, whereas the sanction of legal liability would be appropriate to breaches of the duty contained in section 76.

However, he did not completely close the door to judicial review in relation to section 75 and stated that ‘there may well be occasions where a judicial review challenge to a public authority’s failure to observe section 75 would lie’. He left these issues to be dealt with ‘on a case by case basis’. Second, a more recent case seemed to confirm the above approach. In Re JR21’s Application (2011), a case on tasers, Sir Declan Morgan LCJ, sitting in the High Court, repeated the above quotation from Re Neill’s Application. But he went on to cite case law from Great Britain on the meaning of ‘due regard’ and applied it to the facts of the case before him. Although the applicant pointed to the public authority’s failure to enter into consultation or conduct an EQIA as a breach of section 75, Sir Declan Morgan LCJ found that the public authority’s later commitment to undertake a screening and EQIA showed ‘a preparedness to enter

The Equality Framework in Northern Ireland

285

into dialogue and to alter one’s position as a result of that dialogue’, which was sufficient (in addition to advice from a human rights adviser) to comply with section 75. It is unfortunate that this conclusion was reached, especially when a long line of cases in England and Wales, including Court of Appeal decisions, clearly set out the need to assess equality impacts in advance of policy decisions. However, given that the only likely remedy would have been to return the decision to the public authority, which would probably then have carried out an EQIA, the result may have been the same. It seems that judicial review is still possible in relation to section 75, especially where the investigations procedure under Schedule 9 does not provide a viable alternative.

Human Rights Provisions Relating to Equality Human Rights Act The Human Rights Act 1998, which incorporates most of the European Convention on Human Rights (the Convention) into domestic legislation, provides certain protections against discrimination. Article 14 of the Convention provides that enjoyment of the rights and freedoms set forth in [the Convention] shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

However, it is worth noting that this right not to be discriminated against applies only in relation to the enjoyment of other rights in the Convention and is not free-standing. Indeed, a large number of socio-economic rights, which are not included in the Convention, would fall outside of this anti-discriminatory measure. Nevertheless, several cases before the ECtHR have shown that Article 14 can be used effectively, in combination with other Convention provisions, to assert human rights and protect against discrimination. Protocol 12 to the Convention does contain free-standing anti-discrimination provisions, which state in Article 1: (1) The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. (2) No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

Protocol 12 entered into force in 2005, but it has not yet been signed or ratified by the UK government and so is not applicable in Northern Ireland. (Ireland has signed but not ratified the protocol.)

286

Debbie Kohner

EU Charter on Fundamental Rights The Treaty of Lisbon of 2007 brought the EU Charter on Fundamental Rights (EU Charter) into the EU treaty framework and so gave it direct effect throughout EU Member States as from 1 December 2009. Although the UK included a so-called ‘opt-out’ to the EU Charter, this does not altogether preclude the application of the EU Charter in the UK. First, the EU Charter was always justiciable, given that it reaffirms the constitutional traditions common to all Member States. Second, the explicit exclusion of justiciable rights in relation to Title IV of the EU Charter (dealing with ‘solidarity rights’) shows that the rest of the EU Charter is indeed justiciable in the UK in fields which are within the scope of EU law. Indeed, this was confirmed in the decision of the Court of Justice of the European Union (CJEU) in NS v Secretary of State for the Home Department (2012). The new Treaty on the European Union (TEU) also sets out provisions on equality and human rights, which have direct effect in our domestic law. Furthermore, due to the primacy of EU law, where there is a conflict with national law EU law must prevail. However, this is only when the subject matter in question is within the scope of EU law. Article 2 of the TEU provides: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Similarly, Article 3 of the TEU states that the EU shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.

As noted earlier in this chapter, the EU has also adopted various equality directives. In addition, judgments of the CJEU constitute a further source of equality protection in EU law. There is much judicial activism in the CJEU in relation to the effectiveness and harmonisation of EU law. Its judgments, which must be followed by national courts, have served to deepen the impact of EU equality law in national legal systems.

International Human Rights Provisions In addition to the above, several international human rights treaties contain equality provisions that are applicable in the UK, even if they cannot be directly enforced in our local courts where the treaty provisions have not been formally

The Equality Framework in Northern Ireland

287

incorporated into our domestic law. First, all general human rights treaties refer to equality. Indeed, the very first article of the Universal Declaration of Human Rights (UDHR) states that ‘all human beings are born free and equal in dignity and rights’. Articles 2 and 7 of the UDHR state respectively that ‘everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ and ‘all are equal before the law and are entitled without any discrimination to equal protection of the law’. Similar provisions are found in the International Covenant on Economic Social and Cultural Rights and the International Covenant on Civil and Political Rights. Second, there are several human rights treaties which apply primarily to specific equality groups. Four UN treaties of this kind have been ratified by the UK: the Convention on the Elimination of Racial Discrimination, the Convention on the Elimination of Discrimination Against Women, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities. The UK has also accepted the right of individual petition to the Committee on the Elimination of Discrimination Against Women and to the Committee on the Rights of Persons with Disabilities. Similarly, the Council of Europe monitors the application in the UK of the European Social Charter, the Framework Convention on the Protection of National Minorities and the European Charter for Regional and Minority Languages. Although it is difficult to enforce these treaties in local courts, they have been used effectively by the community and voluntary sector to lobby for legislative change. The treaty-based bodies, which monitor the application of these equality provisions in the UK, also collect evidence on Northern Ireland. By providing the relevant evidence, the UN or Council of Europe can strongly recommend action on the part of the government to address inequalities.

A Bill of Rights As noted in Chapter 1 of this book, the Belfast (Good Friday) Agreement provided for the Northern Ireland Human Rights Commission to advise the Secretary of State on what scope there was for legislating for a Bill of Rights for Northern Ireland that would reflect the particular circumstances of Northern Ireland. The Agreement explicitly suggested that such a Bill of Rights could contain two provisions relating to equality: — a general obligation on government and public bodies fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland, and — a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors.

288

Debbie Kohner

The advice submitted to the Secretary of State by the Human Rights Commission in 2008 suggests that: Provisions should be drafted to ensure that: 1. Everyone is equal before and under the law and has the right to equal protection and equal benefit of the law, including the full and equal enjoyment of all rights and freedoms. 2. No one shall be unfairly discriminated against by any public authority on any ground such as: race, membership of the Irish Traveller community, colour, ethnicity, descent, sex, pregnancy, maternity, civil, family or carer status, language, religion or belief, political or other opinion, birth, national or social origin, nationality, economic status, association with a national minority, sexual orientation, gender, identity, age, disability, health status, genetic or other predisposition toward illness, irrelevant criminal record, property or a combination of any of these grounds, on the basis of characteristics associated with any of these grounds, or any other status. 3. Unfair discrimination consists of any provision, criterion or practice which has the purpose or effect of impairing the ability of any person to participate on an equal basis with others in any area of economic, social, political, cultural or civil life. 4. Without prejudice to the immediate effect of recommendations on the right to equality and prohibition on discrimination, legislation must be enacted to prevent or prohibit unfair discrimination. However, the UK government’s 2009 consultation on a Bill of Rights for Northern Ireland only considered including a ‘general declaratory provision that everyone in Northern Ireland is equal before the law and has equal rights’ or alternatively ‘a broadening of the existing equality protections to cover more groups’. The consultation was widely rejected by stakeholders and, as explained in Chapter 1, there is currently a political stalemate in relation to a Bill of Rights for Northern Ireland. However, if and when a Bill of Rights is introduced for Northern Ireland, it is almost certain that it will contain some equality provisions.

Useful Contacts Equality Coalition c/o Committee on the Administration of Justice Sturgen Building, 2nd floor 9–15 Queen Street Belfast BT1 6EA tel: 028 9031 6016 textphone: 077 0348 6949

The Equality Framework in Northern Ireland email: [email protected] www.equalitycoalition.net Equality Commission Equality House 7–9 Shaftesbury Square Belfast BT2 7DP tel: 028 9050 0600 textphone: 028 9024 0010 email: [email protected] www.equalityni.org

289

13 Sex Discrimination BEVERLEY JONES AND JOANNE WHITE

Legislation to eliminate discrimination between the sexes was introduced into Northern Ireland in the mid 1970s. It followed developments in Great Britain, which were in turn influenced by the American civil liberties movement of the 1960s. In addition, the UK was seeking membership of what is now called the European Union (EU) and the Treaty of Accession required the introduction of equal pay for equal work between men and women. The framework of anti-discrimination legislation in Great Britain changed following the enactment of the Equality Act 2010, which consolidates and harmonises, into one Act the protection against discrimination across all the protected grounds, including equal pay and sex discrimination. The Equality Act 2010 has also been amended, giving the power to introduce Regulations which will require tribunals (in England and Wales) to order employers to conduct an equal pay audit if the tribunal finds breach of an equality clause or sex discrimination in relation to pay. By comparison, Northern Ireland has fallen significantly behind these equality law developments in Great Britain. Our legislative framework remains unchanged, largely mirroring the position in Great Britain pre-2010. In 2013 the Equality Commission for Northern Ireland published a Code of Practice on Equal Pay which encourages the conducting of equal pay audits in the absence of binding legislation.

EU Law EU law plays a crucial role in the interpretation of the domestic legislation governing equal treatment between men and women in Northern Ireland. It takes precedence over conflicting provisions in our domestic law, just as it does in all other Member States. It is interpreted and enforced by the Court of Justice of the European Union (CJEU) in Luxembourg (formerly known as the European Court of Justice) through cases brought to it by the EU’s Commission or referred to it by the national courts of Member States.

292

Beverley Jones and Joanne White

Equal pay between men and women is now enshrined in Article 157 of the Treaty on the Functioning of the European Union (formerly Article 141 of the Treaty of Amsterdam 1999, which in turn amended Article 119 of the Treaty of Rome 1957). Article 157 requires that Member States must ensure that men and women receive equal pay for equal work or work of equal value. ‘Equal pay’ means that pay for the same work at piece rates must be calculated on the basis of the same unit of measurement, and pay for work at time rates must be the same for the same job. The Equal Pay Directive 75/117/EEC, the Equal Treatment Directive 76/207/EEC, the Directive on Equal Treatment in Occupational Social Security Schemes 86/378/ EEC and the Burden of Proof Directive 97/80/EC have all been consolidated into the ‘recast’ Equal Opportunities and Equal Treatment Directive 2006/54/EC. The recast Directive sets out the principles of equal opportunities and equal treatment of men and women in employment and occupation. Article 4 of the recast Directive expands further on the concept of equal pay: For the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated. In particular, where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.

The Pregnant Workers Directive 92/85/EEC sets out minimum standards for the protection of pregnant and breastfeeding workers. The EU has also extended entitlement to maternity leave and pay for self-employed women in Directive 2010/41/EU. Other relevant directives include the Framework Parental Leave Directive 2010/18/EU, which replaces the Framework Directive on Parental Leave 96/34 and seeks to improve the work-life balance for employees, while the PartTime Workers Directive 97/81/EC and the Fixed-Term Workers Directive 99/70/ EC focus on providing protection against discrimination to part-time and fixedterm workers.

Equal Pay Law The Equal Pay Act (NI) 1970 was amended by the Sex Discrimination (NI) Order 1976 and both pieces of legislation came into effect in July 1976. The two laws are supposed to be read as a ‘harmonious code’, although such a reading is difficult since their language is different and they cover mutually exclusive areas. The 1970 Act, which was further amended in 1984, 2004 and 2005, governs only sex discrimination arising in terms and conditions of individual contracts of employment concerning pay. The 1976 Order, which has been amended by several further Orders, was intended to eliminate discrimination in other aspects of employment including non-contractual pay and benefits. However, unlike Northern Irish

Sex Discrimination

293

domestic law, EU law does not make the same distinction between contractual and non-contractual terms. In addition, the 1976 Order outlaws discrimination on the grounds of sex in the field of education and in the provision of goods, facilities and services to the public. Between 1976 and 1984 a woman (or man) was entitled to equal pay only where she (or he) was employed on ‘like work’ with, or work rated as equivalent to, that done by a colleague of the opposite sex. In Commission of the European Communities v UK (1982) the CJEU held that the Equal Pay Act (NI) 1970 did not comply with the requirements of EU law (Art 119 of the Treaty of Rome and the Equal Pay Directive), since there was no provision in the Act enabling a woman doing work of equal value to a man undertaking a different job to claim equal pay. The UK government was held to be in breach of its EU obligations and was required to introduce amending legislation, namely the Equal Pay (Amendment) Regulations (NI) 1984. These provide a statutory right for women undertaking work of equal value to that done by men or vice versa to claim equal pay. But the procedure for such a claim is complex, costly and lengthy. Concerns remain as to whether the government has properly complied with its obligations under EU law.

Making an Equal Value Claim Claiming is regulated by the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005, as amended. First, at a stage 1 equal value hearing, the tribunal considers whether it is reasonable to compare the claimant’s job with the male job with which she wishes it to be compared. The claimant chooses the comparator, who must work either at the same place or for the same employer at a different place but under the same terms and conditions. At this stage the tribunal will also consider whether the claim should be dealt with as a ‘like work’ or ‘rated as equivalent’ claim. The CJEU has confirmed that equal value means at least equal value (Murphy v Board Telecom Eireann,1988). The fact that there are men doing the same work as a claimant, and who are paid the same as the claimant, does not preclude an equal value claim with comparators engaged in different jobs (Pickstone v Freeman’s Mail Order Ltd, 1988). It may, however, be relevant at a later stage of the proceedings, when the employer is entitled to raise the defence that the difference in pay is due to a ‘genuine material factor’ not based on sex. At the same time, where the employer is alleging that the jobs being compared are the subject of a job evaluation scheme, the tribunal will consider whether such a scheme is properly ‘analytical’ and whether it is tainted with sex discrimination. An analytical scheme is one which compares jobs under headings such as skill, effort, responsibility and decision-making, rather than making whole-job comparisons. In Bromley v H & J Quick Ltd (1988) the Court of Appeal of England and Wales set out guidelines for the requirements which must be met if the scheme is to preclude an equal value claim. In McAuley v EHSSB (1990) the Court of Appeal of Northern Ireland held that the job evaluation

294

Beverley Jones and Joanne White

scheme which applied to all health service ancillary workers in Great Britain could not preclude an equal value claim in Northern Ireland, because the British scheme had never been applied to Northern Ireland. There has been a raft of cases before the CJEU challenging the restrictive scope under national law for challenging inequality in pay. In Lawrence v Regent Office Care Ltd (2002) the claimants were female catering assistants and cleaners whose jobs were outsourced by the local council to a private contractor. Previously the claimants had been directly employed by the council. The claimants sought to compare their pay (for work in the private sector) with that of the male manual staff who remained employed by the council and whose work had been rated as of equal value to theirs under a job evaluation scheme. The claimants relied on the CJEU’s statement in Defrenne (No 2) in 1976 that direct discrimination included ‘cases where men and women receive unequal pay for equal work carried out in the same establishment or service’. It was claimed that, even though the claimants had different employers than their local government comparators, they were still in the ‘same service’. The Court rejected the claim, finding that the difference in pay could not be attributed to a ‘single source’; there was no body which was responsible for the inequality and which could therefore restore equal treatment. The single source test was confirmed in Allonby v Accrington and Rossendale College (2004) where female part-time lecturers contracted to the college via an agency, could not compare themselves with full-time male lecturers employed within the college. The employment agency and the college could not be construed as being the same employer. The CJEU again held that the differences in pay could not be attributed to a single source. By way of contrast, the Court of Session in Scotland held in Morton v South Ayrshire Council (2002) that a female claimant employed as a primary school head teacher by a local authority could compare her terms and conditions to those of male secondary school head teachers employed in a different local authority but whose terms and conditions were governed by the same national agreement. In North v Dumfries and Galloway Council (2013) the claimants were women employed in schools whose comparators were men employed at different premises as groundsmen, road workers, and refuse workers. The tribunal held that it was sufficient to ask whether, if the comparators had been employed at the claimants’ establishment, they would have continued to have been employed under broadly similar terms. The question before the Supreme Court was whether it was also necessary to show that there was a possibility that the male comparator could ever carry out his duties at the same establishment. This proposition was rejected by the Supreme Court. Lady Hale explained that to adopt such a test ‘would be to defeat the object of the exercise’ and contravene EU law and the principle of ‘single source’. The correct test is whether the comparators, if they were transferred to do their current jobs in a different location, would remain employed on the same or broadly similar terms to those applicable in their current place of work. Lady Hale commented that the function of the ‘same employment’ test ‘is to establish the terms and conditions with which the comparison is to be made. The object

Sex Discrimination

295

is to simply weed out those cases in which geography plays a significant part in determining what those terms and conditions are.’

Independent Experts Once the tribunal is satisfied that the claim is reasonable, and has excluded the application of a job evaluation scheme, the matter may be referred at the tribunal’s discretion to an independent expert, who prepares a report on whether the jobs compared are of equal value. There is a small panel of independent experts who are appointed by the Labour Relations Agency in Northern Ireland specifically for this purpose. Once the independent expert’s report is completed the tribunal is reconvened. If the tribunal decides to admit it as evidence, the facts on which it is based cannot be disputed. If the report is not admitted as evidence, the tribunal must appoint a second expert to prepare a report. A tribunal can accept or reject an expert’s findings and the parties themselves are entitled to call their own expert evidence to refute the independent expert’s report. In practice this is a hard, although not impossible task.

Defences to an Equal Pay Claim The employer may raise any matters which he or she believes constitute ‘a genuine material factor’ defence to the claim for equal pay. The House of Lords in Rainey v Greater Glasgow Health Board (1987) held that a difference in pay which was objectively justified would defeat a claim for equal pay. At an EU level, in Von Hartz v Bilka Kaufhaus GmbH (1986), the CJEU underlined the need for objectivity in justifying differential access to pay and benefits. The tribunal can accept, reject or adjourn consideration of the ‘genuine material factor’ defence. If it is accepted, the claim fails. If it is rejected or adjourned, the independent expert prepares a report for the tribunal. Further decisions of the CJEU have clarified the standard required for defending differences in pay. Article 157 of the TFEU outlaws differences in pay only if they are due to a sex difference. In Brunhoffer v Bank der Österreichischen Postsparkasse AG (2001) the CJEU confirmed that the onus of proving the presence of sex discrimination in the pay system shifts to the employer only when the claimant has established a prima faciecase that she is a victim of less favourable treatment which can be explained only by the difference in sex. Hence, once it is established that the difference in pay is not due to sex discrimination there is no requirement on the employer to provide any objective justification for the pay difference. In Glasgow City Council v Marshall (2000), the then House of Lords likewise held that, once it had been determined that none of the factors which explained the difference in pay were tainted by sex discrimination, there was no requirement for the employer to objectively justify the differences. This appears to

296

Beverley Jones and Joanne White

remain the position, although there have been attempts over the years to require objective justification as a matter of course to explain any disparity. Some commentators see this as an attempt to use the equal pay legislation to introduce ‘fair pay’, as opposed to the elimination of sex discrimination in pay structures. In Schönheit v Stadt Frankfurt am Main (2004), which concerned discrimination in relation to pension benefits against part-time workers in the public sector, the CJEU held that the different treatment of men and women may be justified, depending on the circumstances, by reasons other than those put forward at the time when the measure initiating the difference in treatment was introduced (see also the decisions of the Court of Appeal of England and Wales in British Airways v Grundy (No 2), 2008). In the Irish case of Kenny v Minister for Justice, Equality and Law Reform (2013) the CJEU was asked whether ‘the interests of good industrial relations’ could be taken into account as an objective justification for the difference in pay. The Court held that the interests of good industrial relations are subject to the observance of the principle of non-discrimination between male and female workers in terms of pay. That concern cannot, therefore, of itself, constitute the only basis justifying such discrimination … It follows that the interests of good industrial relations may be taken into consideration by the national court as one factor among others in its assessment of whether differences between the pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex and are compatible with the principle of proportionality.

If statistics suggest that a difference in pay may be due to sex discrimination the CJEU will require the employer to justify objectively the difference by factors unrelated to sex. The decision in Jamstlldhetsombudsmannen v Orebro Lans Landsting (2000) reinforced the position as outlined by the CJEU in Enderby v Frenchay Health Authority and Secretary of State for Health (1994). Enderby required an objective justification of the pay differential where two jobs of equal value were carried out, ‘one almost exclusively by women and the other predominantly by men’. It was not sufficient merely to explain the way in which the difference had arisen if statistics showed that women generally were more likely to earn lower pay than their male comparators. The CJEU will not accept different collective bargaining structures as justifying differences in pay if the structures are based on gender-segregated jobs, but where the two different groups are of similar proportions by gender, thus not tainted by sex discrimination, separate collective bargaining processes may be accepted as a defence (see Redcar and Cleveland Borough Council v Bainbridge (No 2), 2008). An allegation of poor performance, unless it is specifically linked to individual performance, is unlikely to be acceptable. Reliance on length of service as a justification for unequal pay was considered by the CJEU in Cadman v Health and Safety Executive (2006). There the use of incremental pay scales was a key reason used to explain the difference in pay between the claimant and her male comparators and the Court held that the pay scales impacted adversely on women and so such an explanation for unequal pay was tainted by indirect sex discrimination.

Sex Discrimination

297

To be lawful, the unequal pay required some other justification. This confirms the approach enunciated by the CJEU in Danfoss (1989) that rewarding experience is a legitimate objective of pay policy: [A]s a general rule, recourse to the criterion of length of service is appropriate to achieve that objective since length of service goes hand in hand with experience and experience generally enables the worker to perform his duties better … [T]he employer is therefore free to reward length of service without having to establish the importance it has in the performance of specific tasks entrusted to the employee.

This presumption can, however, be rebutted by a claimant providing evidence ‘capable of giving rise to serious doubts as to whether recourse to the criterion of length of service is in the circumstances appropriate’. So the CJEU’s ruling does not allow length of service as a blanket defence to equal pay claims; in other words, service-based pay cannot be unreasonably disproportionate to the proficiency gained by experience. In Wilson v Health and Safety Executive (2009), the Court of Appeal held that a 10-year incremental scale had not been shown to be objectively justified. In McPolin v Department of Finance and Personnel (2010) the claimant, a senior principal legal officer, did like work but was paid less than her nine male comparators. The tribunal determined that the claimant was paid less than her male comparators because of the length of service criterion within the respondent’s incremental pay scale but, as the claimant could not provide evidence which would raise ‘serious doubts’ over the link between experience and performance, the respondent was able to justify the difference in pay. Cost has been increasingly relied on as a defence in cases of indirect sex discrimination. In Cross v British Airways plc (2005) the Employment Appeal Tribunal (EAT) in Great Britain held that an employer cannot rely solely on considerations of cost but may be permitted to put cost into the balance together with other justifications. This is often described as the ‘costs plus’ approach, and it was confirmed by the EAT in Redcar and Cleveland Borough Council v Bainbridge (2007). In Hayward v Cammell Laird Shipbuilders Ltd (1988), the employer argued that, even though the applicant did work which was of equal value to her male comparators, she was not entitled to an increase in pay because her overall terms of employment were no less satisfactory than those of the men, since she enjoyed access to pension rights and sick pay which they did not. The House of Lords ruled that she was nevertheless entitled to the increase in pay, as she could compare a specific less favourable term of her contract with a similar term contained in the men’s contracts. The court ruled that it was not required to consider the value of the overall package of terms and conditions enjoyed by the applicant and her male colleagues. In 1991 the ECJ upheld this approach in Barber v Guardian Royal Exchange Assurance Group. Later cases have stressed the employer’s obligation to ensure ‘transparency’ in pay structures and that a total package approach is not acceptable.

298

Beverley Jones and Joanne White

Equality Clauses If the ‘genuine material factor’ defence fails, the claimant will be entitled to have an equality clause inserted into her contract of employment. She will then be entitled to equal pay. But it is important for a claimant to note the limitations of the equality clause. Following the CJEU decision in Enderby, the case returned to the tribunal under the name Evesham v North Hertfordshire Health Authority (2000) and the tribunal ruled that the claimant was entitled to equal pay with her comparator. Unfortunately, her comparator had been employed in his post for only one year, while the claimant had been employed for five years. She believed she was entitled to £4,000 more than her comparator but the tribunal, and subsequently the EAT, held that this was not required under the Equal Pay Act. The claimant was entitled only to an amendment to her contract to make her pay no less favourable than that of her male comparator.

Back Pay and Time Limits As a result of the CJEU’s decisions in Preston v Wolverhampton Health Care NHS Trust (2001) and Levez v T H Jennings (1999), the Equal Pay Act was amended in 2004 to enable claimants to seek up to six years’ back pay. Previously, claims for arrears of pay were limited under national law to two years’ back pay but the CJEU found this remedy deficient in that it failed to provide a level of damages equivalent to that allowed for other similar complaints, such as racial discrimination. Special rules apply in cases where the employer has deliberately concealed facts relevant to the pay inequality or where the claimant has a disability. As with all discrimination claims, strict time limits apply in relation to bringing a claim to the industrial tribunal. However, in Birmingham City Council v Abdulla (2012) the Supreme Court permitted the employees whose equal pay claims to the industrial tribunal were out of time to issue their claims in the civil courts as breach of contract claims, which are subject to a six-year limitation period. In this case 174 former employees (170 women and four men) of Birmingham City Council had all left their employment between 2004 and 2008. Their equal pay claims around the denial of bonuses and other payments were issued in the High Court in 2010. The Supreme Court held that the High Court had not been right to strike out their claims and the claimants were able to continue with their complaints against the Council in the High Court.

Difficulties with the Legislation There remain concerns that the amended equal pay legislation still does not comply with EU law. Perhaps of more practical significance is that the processing of cases remains inordinately lengthy, despite the legislation having operated for

Sex Discrimination

299

more than 40 years. Without expert advice and legal representation throughout, it is unlikely that any claim will succeed. Given the continuing substantial differentials in pay between men and women, employers have every incentive to seek to defeat equal pay claims, particularly where industries employ predominantly female workers.

Sex Discrimination Legislation The Sex Discrimination (NI) Order 1976, as amended, provides limited protection against unequal treatment of men and women in the fields of employment, education and the provision of goods, facilities and services to the public. There are a number of important exclusions which restrict the scope of the legislation, but unlike the equal pay legislation the Order contains definitions of what constitutes discrimination: while the terms are not specifically used, the Order distinguishes between ‘direct’ and ‘indirect’ discrimination (see below). The 1976 Order also set up the Equal Opportunities Commission for Northern Ireland, now subsumed into the Equality Commission for Northern Ireland by virtue of the Northern Ireland Act 1998 (see Chapter 12). In 1999 the government introduced new legislation to ensure compliance with EU law in the form of the Sex Discrimination (Gender Reassignment) Regulations (NI) 1999. These expand the scope of the 1976 Order to protect individuals from discrimination on grounds that they are contemplating, undergoing or have undergone gender reassignment. Prior to 2005, the 1976 Order contained no specific provisions relating to pregnancy and maternity leave. Despite this omission, cases of pregnancy and maternity discrimination were successfully pursued by women who relied mainly on EU case law, the Equal Treatment Directive (now the Recast Directive) and the Pregnant Workers Directive (92/85/EC) to remedy the inadequacies of domestic legislation. The 1976 Order was eventually amended by the Employment Equality (Sex Discrimination) Regulations (NI) 2005, which prohibited discrimination on the grounds of pregnancy and maternity leave and sought to give effect to amendments made to the revised Equal Treatment Directive 2002/73/EC. However, the 2005 Regulations were successfully challenged in a judicial review brought by the then Equal Opportunities Commission as not complying with the 2002 Directive. This resulted in further amendments being introduced by the Sex Discrimination (Amendment of Legislation) Regulations (NI) 2008.

Direct Discrimination Direct discrimination means treating an individual less favourably than a person of the opposite sex (and, at work, a married person less favourably than a single

300

Beverley Jones and Joanne White

person). For example, if girls have to obtain higher marks than boys to secure a grammar school place, a prima facie case of unlawful discrimination arises under the education provisions of the 1976 Order. Unless it can be shown that the reason for the less favourable treatment is unrelated to the sex of the children, it will be unlawful. The motive for the treatment is irrelevant, even if it is intended for perceived good reasons (Re EOC for Northern Ireland, 1988). It is for the court to determine whether the reason provided for the less favourable treatment is not based on sex. In Wallace v South-Eastern Education and Library Board (1980), the Court of Appeal of Northern Ireland recognised that there was rarely clear evidence of sex discrimination and that unless the court was able to draw an inference of unlawful discrimination from the circumstances of the complaint the purpose of the legislation would be largely defeated. The 1976 Order, as amended, contains provisions on the application of the burden of proof which provides that, where a claimant proves facts from which the tribunal could conclude that the respondent had committed a discriminatory act, the tribunal must uphold the complaint unless the respondent provides an adequate non-discriminatory explanation for the treatment.Significantly, tribunals and courts can draw an inference of sex discrimination in the absence of a clear and specific explanation. This inference is required only in the area of employment, not in the area of goods, facilities, services or education. Guidance on the application of the burden of proof was given by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd (2003) which was reviewed and amended by the Court of Appeal of England and Wales in Igen Ltd v Wong (2005).

Indirect Discrimination The definition of indirect sex discrimination was amended by the 2005 Regulations to give effect to EU law. Indirect sex discrimination arises if an employer applies to a woman a provision, criterion or practice (PCP) which: (1) puts or would put women at a particular disadvantage when compared with men or vice versa; (2) puts the claimant at a disadvantage; and (3) the employer cannot show that it is a proportionate means of achieving a legitimate aim. In R(E) v Governing Body of JFS (2010), which was a case before the Supreme Court challenging a school’s admission policy as racially discriminatory, Lady Hale stated: ‘Direct and indirect discrimination are mutually exclusive. You cannot have both at once.’

Victimisation The Sex Discrimination (NI) Order 1976 defines and prohibits victimisation. It aims to protect a person from being less favourably treated because he or

Sex Discrimination

301

she has asserted a right under the equality laws. In a race relations case before the EAT (Aziz v Trinity Street Taxis Ltd, 1988) it was held that the appellant had failed to show victimisation since he had produced no evidence to suggest that he would have been treated any differently had he asserted a right under other legislation. However, in a fair employment case the Court of Appeal of Northern Ireland appeared to reject the approach in Aziz, holding that a complainant did not have to prove that the victimisation was solely or predominantly due to the earlier complaint (Northern Health and Social Services Board v Fair Employment Commission for Northern Ireland (1994) Court of Appeal (unreported). It had previously been the case under national law that a claimant in a sex discrimination case could not claim any form of unlawful discrimination after the expiry of the employment relationship. This approach was successfully challenged in Coote v Granada Hospitality (1998), where the CJEU held that UK national law was deficient in failing to provide protection from victimisation where the claimant was refused a reference following termination of employment. This has now been put on a statutory footing through article 22A of the 1976 Order, which gives specific protection against discrimination and harassment where the ‘relevant relationship’ has come to an end. A ‘relevant relationship’ is a relationship during the course of which an act of discrimination by one party to the relationship against the other party to it is unlawful under Part III of the 1976 Order (which covers discrimination in employment).

Sex Discrimination in Education Articles 24–29 of the 1976 Order make it unlawful for a body responsible for the provision of education to discriminate against girls or boys. This applies to both schools and the Education and Library Boards, but the Order does not cite the Department of Education of Northern Ireland as a ‘body responsible’. The reason for this appears to be that the Department is expected to ensure that schools and Boards do not offend the legislation. In Re EOC of Northern Ireland (1988) the Department marked ‘11-plus’ papers, adjusting the scores for boys and girls differentially. It then separated the sexes, taking the top 27 per cent of boys and the top 27 per cent of girls as eligible for free grammar school places. The effect of this practice was to exclude from free places some girls who had been awarded better marks than some boys. The High Court held that the practice constituted unlawful discrimination and that the Boards had contravened the Order by implementing the Department’s decision. The Department itself was found to have contravened article 40 of the Order, which prohibits the issuing of unlawful instructions. It should be noted, however, that the 1976 Order contains special exemptions for single-sex schools.

302

Beverley Jones and Joanne White

Sex Discrimination in the Provision of Goods, Facilities and Services Article 30 of the 1976 Order requires that goods, facilities and services must be available to both sexes ‘in the same manner and on the same terms as are normal in relation to men’. Whilst there are no definitions of ‘goods’, ‘facilities’ or ‘services’ in the Order, access to loan facilities and service in a public bar have been held to fall within these provisions, but in R v Entry Clearance Officer, Bombay, ex parte Amin (1983) the House of Lords held that the provision of vouchers allowing entry into the UK did not constitute a ‘facility’ under the English equivalent to article 30 in Northern Ireland’s law. The court also held in Amin that the section applies only to ‘market-place activities’, that is, activities which can be undertaken by a private individual. To a large extent this appears to exclude the state from liability for discrimination and to prevent scrutiny of the operation of government policies in the areas of social security and taxation. However, EU law can in some instances provide protection from state discrimination. The failure, owing to discriminatory assumptions made by the Department of Health and Social Security, to pay invalid care allowance to a married woman who gave up work to nurse an infirm relative was found to be contrary to the European Social Security Directive in Drake v Chief Adjudication Officer (1985). This case led to many married women becoming eligible for the benefit. This extensive area of exclusion from the scrutiny of anti-discrimination law is currently under review, particularly in the area of race discrimination, and is likely to be narrowed significantly in the future. Another exemption which limits the scope of article 30 is the one governing private clubs. Under this, women are often denied equal access to sporting facilities, and the denial can extend to the use of public facilities, such as at golf clubs. In Bateson v YMCA (1980) the High Court of Northern Ireland held that a temporary day membership card, which allowed access to a snooker table, did not make the facility a private club, so to deny women access to it amounted to unlawful discrimination.

Sex Discrimination in Employment The 1976 Order makes it unlawful for employers to discriminate in the selection of employees and in the treatment of their workforce. This covers training and promotion opportunities, benefits, facilities, services, dismissals or ‘any other detriment’ (art 8). Being subject to a ‘detriment’ is interpreted as being put at a disadvantage: Jeremiah v Ministry of Defence (1979). In Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) the House of Lords stated that no physical or

Sex Discrimination

303

economic consequence was necessary but that ‘an unjustified sense of grievance cannot amount to detriment’. Only if there is a ‘genuine occupational qualification’ is it lawful for an employer to seek specifically to employ a man (or woman), or to consider one sex only for training or promotion (art 10). In some circumstances, however, employers and training bodies can provide under-represented groups with the skills necessary for work which they may not traditionally have done (arts 17, 48 and 49). Courses can be run in companies trying to encourage applications for particular posts where there have been few or no female (or male) applicants in the previous 12 months. Training bodies can provide courses limited to one sex or to persons who may have been away from employment because of domestic responsibilities. Firms employing fewer than six employees, and private households, used to be excluded from the 1976 Order. But in Commission of the European Communities v UK (1983) the CJEU held that these exclusions were unjustified. It did, however, recognise that there might be instances when an employer could seek a person of a particular sex for employment in a private household. The Sex Discrimination (NI) Order 1988 (which parallels the 1986 Act in Great Britain) implemented the European Court’s ruling.

Sexual Harassment Prior to 2005, ‘sexual harassment’ was not defined in the 1976 Order. The definition of harassment is now set out in article 6A of the 1976 Order as being where a person engages in unwanted conduct that is either related to the recipient’s sex or that of another person, or verbal, non-verbal or physical conduct of a sexual nature, and which has the purpose or effect of violating the recipient’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. An employer will have a defence to anything done by one of its employees in the course of employment if the employer can prove that he or she took all reasonable steps to prevent the employee from doing that thing, or from doing anything of that description. In Macdonald v Advocate General for Scotland (2003) the House of Lords held that an employer will not be liable for subjecting an employee to discrimination by a third party other than an employee, unless the reason for the failure to take action to prevent or reduce the discrimination is related to the employee’s sex or the third party was acting as the employer’s agent. In so ruling the House of Lords overruled the decision of the EAT in Burton v De Vere’s Hotel (1997) which held that an employer will be liable for third-party harassment only where the event in question was sufficiently under the control of the employer that he or she could, by applying good employment practice, have prevented the harassment or reduced its extent. The 1976 Order was subsequently amended by the 2008 Regulations to address third-party harassment. Article 8(2B) provides that the circumstances in which

304

Beverley Jones and Joanne White

an employer is to be treated as subjecting a woman to harassment includes those where a third party subjects the woman to harassment in the course of her employment and the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. Liability does not arise unless the employer knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party (Art 8(2C)).

Pregnancy Article 5A of the 1976 Order makes it unlawful for an employer to treat a woman during a protected period less favourably on the ground of her pregnancy than she would have been treated had she not been pregnant. The protected period begins when a woman becomes pregnant and ends at the end of her statutory maternity leave or, if she is not entitled to ordinary maternity leave, two weeks after the end of the pregnancy. Where a person’s treatment of a woman is on grounds of illness suffered by the woman as a consequence of pregnancy, that treatment is to be taken to be on the ground of pregnancy. The provisions also make it unlawful for an employer to treat a woman less favourably on the ground that she is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave. There is no requirement for a comparator in pregnancy and maternity discrimination cases, as confirmed in the 1976 Order as amended. This principle was first established by the CJEU in Webb v EMO Air Cargo (UK) Ltd (1994) and by the House of Lords in Webb v EMO Air Cargo (UK) Ltd (No 2) (1995). Employers are allowed to provide preferential treatment for women in connection with pregnancy and maternity. But it remains the position that a failure to pay a woman full pay during maternity leave does not amount to unlawful discrimination. In Gillespie v Various Health Boards (1996) the CJEU held that a maternity allowance should be ‘adequate’ but, provided the allowance was no less favourable than statutory sickness benefits, it would meet the test of adequacy (see also the CJEU’s decision in North Western Health Board v McKenna, 2005). However, failure to pay a woman her pay rise during pregnancy was held to be discriminatory. A concern following the decision in Webb was whether an employer can discriminate against an applicant for a fixed-term contract who is pregnant. In Tele Danmark v Handels-Og Kontorfunktionaerernes Forbund I Danmark and JimenezMelgar v Ayuntamiento de los Barrios (2001) the CJEU clarified the obligations imposed on employers in these circumstances. First, a prospective employee has no obligation to advise a potential employer of her pregnancy in order to obtain maternity protection, since maternity protections do not depend on an ability to be present at work. Second, the same maternity protection exists for both permanent and fixed-term workers. Thus, any attempt to avoid, end or not

Sex Discrimination

305

renew a fixed-term contract in order to preclude the employment of a pregnant woman amounts to unlawful discrimination. Third, it would not be unlawful for an employer to avoid, end or not renew a fixed-term contract if the reason for doing so is unconnected with pregnancy or maternity. It is also important to note that the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations (NI) 2002 provide fixed-term employees with the right not to be treated less favourably than a comparable permanent employee as regards contractual terms and benefits, unless the difference in treatment can be objectively justified. In Coleman v Attridge Law (2008) the CJEU ruled that the Disability Discrimination Act 1995 could be interpreted as allowing an ‘associative discrimination’ claim on grounds of the claimant’s son being disabled, despite the very clear wording of the statute limiting claims to people with disabilities. The CJEU’s ruling was based on its interpretation of the direct discrimination provisions in the Framework Employment Equality Directive. However, in Kulikaoskas v MacDuff Shellfish (2009) the claimant complained unsuccessfully of associative discrimination on grounds of his partner’s pregnancy. The EAT distinguished Coleman on a number of bases, including the fact that it was based on the Framework Directive and not on the Pregnant Workers Directive or the recast Equal Treatment Directive, which set out the protection afforded to pregnant women. The EAT held that the legislative framework limits the ability to claim discrimination to ‘a woman’ treated less favourably ‘on the ground of the woman’s pregnancy’, since the objective of the law in relation to pregnancy discrimination was to afford special protection to the ‘uniquely female state of pregnancy’. The Scottish Court of Session referred this case to the CJEU for a definitive ruling on whether it is lawful to discriminate against a man on the grounds of his partner’s pregnancy, but the reference was withdrawn after the case was settled. Two cases were referred to the CJEU on the rights of mothers who have entered into a surrogacy arrangement and the extent to which they can rely (if at all) on the EU’s protection in respect of pregnancy and maternity rights. In the case of Z v A Government Department (2014)EUECJ C-363-12 (18 March 2014), the European Court held that a refusal to provide paid leave equivalent to maternity leave to a female worker who is a commissioning mother and has had a baby through a surrogacy arrangement does not constitute discrimination on the grounds of sex. In the case of C-T v S-T (2014) EUECJ C-167/12 (18 March 2014), the European Court held that member states are not required to provide maternity leave to a female worker who, as a commissioning mother, has had a baby through a surrogacy arrangement. This is the case even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby.The UK government is planning to extend the right to take adoption leave and the new right to shared parental leave to intended parents in a surrogacy situation in 2015 (through regulations to be made under the Children and Families Act 2014). Similar changes were the subject of public consultation in Northern Ireland by the Department for Employment and Learning in 2013 and the outcome of this is awaited.

306

Beverley Jones and Joanne White

Work–life Balance There is no automatic entitlement to flexible working. The Flexible Working (Procedural Requirements) Regulations (NI) 2003 establish a statutory right for employees who have a child under the age of 17 (or under the age of 18 if the child is disabled) to request contract variation to change the terms and conditions of their contract of employment to allow for flexible working. The Regulations have also been amended to extend the right to request flexible working to employees with caring responsibilities for an adult dependant. In England and Wales the right to request flexible working has been extended to all employees who have 26 weeks of continuous service (Children and Families Act 2014, s 131) and a similar proposal has been the subject of a public consultation in Northern Ireland but the current law remains as set out above. However, the sex discrimination provisions have enshrined the obligation to consider a request for flexible working or reduced hours since the late 1970s. In essence, where such a request is refused, potential indirect sex or marital status discrimination arises, since the courts accept that women and parents are less able to comply with a full-time work requirement due to family responsibilities. If an employer is not in a position to grant a request for flexibility, he or she will be required to justify the refusal where this would result in a detriment to the applicant. Given this obligation, it is unlikely that a policy which opposed flexible work would provide the justification necessary for refusal of flexible work for domestic reasons. In Muldrew v Board of Governors of Larne Grammar (2012) an industrial tribunal held that the employer had failed to justify a requirement for year heads to be full-time teachers.The tribunal noted that year head posts were important in terms both of school management and individual career development. Restricting the posts to full-time workers could have an unlawful and indirect impact on women, or an unlawful and direct impact on part-time workers. Accordingly, such a policy required careful consideration, which here was lacking on the evidence. The tribunal commented that: To exclude part-time workers from such positions, solely on the ground that service provision might sometimes fall short of the gold standard, or might sometimes involve flexibility from other workers, would be to reverse any progress in equal opportunities terms back to the 1950s experience.

However, it must be stressed that there is no automatic right under sex discrimination provisions, or indeed under mainstream employment provisions, to flexible work because of domestic responsibilities. The obligation resting on the employer is to balance the needs of the organisation with the equality issues. Hence, whether an employee can be granted flexible work will depend on the individual facts of the case and the precise nature of any flexible arrangement will be the subject of negotiation since the employer may not be in a position to

Sex Discrimination

307

grant the employee’s specific request but may be in a position to meet the request half-way. (See also Chapter XX.)

Retirement and Pensions Matters relating to death or retirement fall outside the scope of the 1976 Order. However, in Marshall v Southampton and South-West Hampshire Area Health Authority (1986) the CJEU held that, whilst discrimination in the state pension age was lawful, the domestic legislation could not preclude protection against dismissal at different ages for men and women, even though they were based on the age at which people became entitled to the state pension. Although the Sex Discrimination (NI) Order 1988 now limits the scope of the exclusion, successful challenges to it, which commenced with Barber v Guardian Royal Exchange Assurance Group (1990), still continue. However, EU Member States limited the impact of the Barber case by adopting a Protocol to the Treaty of Rome precluding redress for discrimination prior to the Barber judgment. In any event, by 2018 the differential state pension age in the UK will have been eradicated, with both men and women retiring at 65. Thousands of cases concerning discrimination in pension benefits for parttime workers have been lodged before tribunals in Great Britain and Northern Ireland. These workers were excluded from pension benefits and sought to protect pensions by claiming previous years’ benefits. In Magorrian v EHSSB (1996), referred from a tribunal in Belfast, the CJEU held that part-time workers who were excluded entirely from a particular pension benefit were entitled to claim pension rights backdated to 1976, provided they were willing to pay any contributions still owed. This position was reiterated in a consolidated case from a tribunal in Birmingham, Preston and Others v Wolverhampton Health Care NHS Trust (2001).

Collective Agreements In Commission of the European Communities v UK (1983) the failure to provide a remedy against discrimination appearing in non-binding collective agreements between unions and employers was found to be contrary to European law. The government argued unsuccessfully that, since the agreements were in any case unenforceable, there was no necessity to provide a remedy. It was held that, irrespective of the legal effect of these agreements, they did, in fact, regulate working conditions and industrial relations. The 1988 Order accordingly makes void any term of a contract of employment which arises from discrimination in a collective agreement, although it still does not provide a mechanism for challenging the actual agreement.

308

Beverley Jones and Joanne White

National Security Certificates Until 1988 there could be no consideration of matters covered by the 1976 Order whenever a certificate asserting that a question of national security was involved had been issued by the Secretary of State. In Johnston v Chief Constable of the Royal Ulster Constabulary (1986) the claimant was one of 39 female police reservists whose three-year contracts of employment were not renewed, whilst those of male colleagues were. When the women challenged the decision, the Secretary of State issued a national security certificate. The case was referred to the CJEU, which held that the failure to allow for judicial review of the issue of a national security certificate in Northern Ireland was a breach of European law. The Sex Discrimination (Amendment) (NI) Order 1988 implemented the Court’s ruling.

Protective Legislation Article 52 of the 1976 Order allows for the retention of many discriminatory pieces of legislation on grounds of health and safety, but much of the discriminatory protective legislation was in fact repealed in 1990.

Remedies In a claim of sex discrimination an industrial tribunal can issue a declaration that the employer has unlawfully discriminated against the claimant. It can also recommend that the employer should reduce the effect of the discrimination on the claimant. Finally, the tribunal can award unlimited compensation. However, there are no powers to issue injunctions (ie orders to do or not do something) and this means that the remedies of the court are often not wholly appropriate, especially in sexual harassment cases. In addition, the powers of the tribunal to recommend means of redressing the impact of discrimination are very limited.

Conclusion Irrespective of any new Equality Act containing harmonised anti-discrimination law, a comprehensive piece of legislation on sex discrimination and equal pay is urgently needed in Northern Ireland. It should require positive action by employers and state institutions, as the mere prohibition of discrimination is insufficient to secure equality. The failure of the state to provide a comprehensive system of child-care facilities means that the burden of domestic responsibilities continues

Sex Discrimination

309

to rest chiefly upon women’s shoulders. Stereotypical attitudes persist. Equal pay will not be won until sex segregation in employment is removed and women have equal representation in higher managerial grades. Strengthening the law to provide a coherent enforceable set of rights would manifest the commitment of the state towards the principle and practice of equality and set a standard to be followed by society.

Useful Contacts Equality Commission for Northern Ireland Equality House 7-9 Shaftesbury Square Belfast BT2 7DP tel: 028 90 500 600 www.equalityni.org Northern Ireland Rural Women’s Network Unit 13A, Ballysaggart Business Complex 8 Beechvalley Way Dungannon BT70 1BS tel: 028 8775 3389 www.nirwn.org.uk Women’s Aid Foundation Northern Ireland 129 University Street Belfast BT7 1HP tel: 028 9024 9041 Helpline: 0808 802 1414 www.womensaidni.org Women’s Information Northern Ireland 86 Lisburn Road Belfast BT9 6AF tel: 028 9038 2022 womensinfoni.com Women’s Support Network 109 Royal Avenue Belfast BT1 1FF tel: 028 9023 6923 www.wsn.org.uk

14 Religious and Political Opinion Discrimination EVELYN COLLINS*

Religious and political opinion discrimination in employment has been unlawful in Northern Ireland since 1976. Prior to 1976, the Government of Ireland Act 1920, which created a separate Parliament for Northern Ireland, provided that Parliament could not ‘give a preference, privilege or advantage, or impose any disability or disadvantage, on account of religious belief ’ (s 5(1)). This protection, while declaratory in intent, was little invoked and the civil rights campaign in Northern Ireland which gained support in the 1960s focused on the need to eliminate religious discrimination—against people from the Catholic community in particular—in areas such as employment and housing. Indeed, as Osborne and Shuttleworth pointed out in their 2004 study, complaints of religious discrimination in employment, alongside other matters including housing, electoral arrangements and policing, were a recurrent theme during the period of devolved government at Stormont from 1921 to 1972. Following the suspension of devolved government in 1972, the UK government commissioned a review of employment discrimination issues led by a Conservative Minister of State, William Van Straubenzee and as a result the Fair Employment (NI) Act was enacted in 1976. This outlawed discrimination on grounds of religious and political opinion in employment and established a Fair Employment Agency with particular functions under the legislation. Subsequent changes to the fair employment legislation in 1989 followed a major review by the Standing Advisory Commission on Human Rights. This shifted the focus considerably, from an obligation on employers not to discriminate to the creation of a set of positive obligations on employers to address underrepresentation and ensure fair participation of both Catholics and Protestants at work.

* This chapter draws upon and updates the text written for earlier editions of this Handbook by Professor Stephen Livingstone, to whom we are all indebted for his contribution to promoting equality and human rights in Northern Ireland. I would also wish to acknowledge the contribution of colleagues Eileen Lavery and Ciaran Trainor, who commented on a draft of the text.

312

Evelyn Collins

The legislation which now governs this area is the Fair Employment and Treatment (NI) Order 1998 (FETO). This further extended the scope of the protections against religious and political opinion discrimination to the provision of goods, facilities and services and some other areas. In 2003 the Order was amended by the Fair Employment and Treatment Order (Amendment) Regulations (NI) to meet the requirements of the EU Framework Directive for Equal Treatment in Employment and Occupation (Directive 2000/78/EC).

The Overall Position In general terms, unlawful discrimination means that a person is being treated less favourably than others because he or she does not share the same characteristic as others—such as age, disability, race or gender. The fair employment and treatment legislation outlines the circumstances in which individuals may complain that they have been discriminated against on grounds of religious belief and/or political opinion and, since 2003, in some areas, on grounds of similar philosophical belief. The law makes it unlawful to discriminate on the grounds of religious belief and/or political opinion and similar philosophical belief in the areas of employment and the provision of vocational training. It also makes it unlawful to discriminate on the grounds of religious belief and/or political opinion in the provision of goods, facilities or services, the disposal or management of premises, and the provision of further and higher education. In the Northern Ireland context, more specifically, individuals can raise complaints that they are being treated less favourably because they are either Catholic or Protestant, because they are perceived to hold either of these religious beliefs, or because they are perceived to be nationalist or unionist, and individuals may also raise complaints of discrimination because they do not hold any of these beliefs or opinions. Of course ‘religious beliefs’ also includes other religions, faiths and philosophies including Judaism, Islam, even Orthodox Christianity, Hinduism and Buddhism. In Gibson v Police Authority for Northern Ireland (2006) the Fair Employment Tribunal (FET) held that freemasonry could fall within the meaning of religious belief for the purposes of FETO. In this case the Tribunal heard evidence that the Order required a belief in a unitary God and that its members were required to look after the interests of other members. It recognised that in organisations such as the police service Masonic activity could be a ‘chill factor’, which could operate as a deterrent to others who are not members of the Masonic Order. ‘Political opinion’ is also not limited solely to Northern Ireland constitutional politics. In McKay v NIPSA (1994), for instance, the applicant successfully claimed unlawful discrimination on the grounds of his ‘broad left’ political opinions.

Religious and Political Opinion Discrimination

313

The term includes political opinions relating to the conduct of the government of the state. It also covers a person’s belief that workers have the right to organise and bargain collectively (Neill v Belfast Telegraph Newspapers Ltd, 2002). However, political opinion for the purposes of FETO does not include ‘cultural values’ (Gill v NICEM, 2001) although it does now include ‘similar philosophical belief ’, as mentioned above. A political opinion which includes approval or acceptance of the use of violence for political purposes in Northern Ireland is expressly excluded from the scope of protection (art 2(4): see page 319–20 below). This chapter deals primarily with religious and political opinion discrimination in the context of issues arising during a person’s employment or application for employment, but it also touches on such discrimination in non-employment spheres.

Discrimination in Employment The Fair Employment and Treatment (NI) Order 1998, as amended, outlaws four types of discrimination: direct discrimination, indirect discrimination, victimisation and harassment. Each of these is considered below, first of all in relation to employment discrimination. More generally, it is unlawful in Northern Ireland for an employer to discriminate in the arrangements made for the purposes of determining who should be offered employment, in the terms on which an offer of employment is made, or by refusing or deliberately omitting to offer a person employment for which he or she has applied (art 19(1)(a)). Where a person is already employed, it is unlawful for an employer to discriminate in the terms of employment which are afforded to him or her, in the way he or she is given access to benefits, or by dismissing or subjecting the employee to any other detriment (art 19(1)(b)). The legislation applies to all employers regardless of size, unless they are specifically exempt. It protects contract workers (art 20) and, since the amendments made in 2003, office holders (art 20A: see Lennon v Department for Regional Development, 2012). The legislation also applies to other bodies, such as those with statutory power to select employees for others (art 21), employment agencies (art 22), vocational organisations (art 23), persons providing training services (art 24), those who have powers to confer qualifications (art 25) and partnerships (art 26). It applies too to barristers, in relation to taking any person as a pupil barrister and the treatment of a person who is a pupil barrister (art 32). In Loughran and Kelly v Northern Ireland Housing Executive (1998) the House of Lords held that a partner in a firm of solicitors is entitled to claim protection against religious or political discrimination on the part of a client to whom the firm is supplying services. Volunteer workers, however, are not protected under FETO, or indeed under any other anti-discrimination laws in Northern Ireland.

314

Evelyn Collins

Direct Discrimination Direct discrimination covers instances where someone is or would be treated less favourably than others in the same or similar position on grounds of religious belief and/or political opinion (art 3(2a)). As Livingstone pointed out in earlier editions of this Handbook, ‘this is probably what most people think of when they consider what discrimination is, namely deliberately refusing a job or promotion to someone because he or she is a Catholic or Protestant’. While such blatant discrimination is, of course, outlawed by the Order, instances where employers act out of concern for the person or the views of others have also been held to constitute discrimination. In Neilly v Mullaghboy Private Nursing Home (1991) the employer was found to have discriminated when she dismissed a cook from her nursing home because the residents of the home said they did not want a Catholic cook from the Republic of Ireland. In Mooney and Cafolla v Andras House Ltd (2008) the claimants were employed as managers in the Days Hotel, adjacent to the loyalist Sandy Row area of Belfast. Both claimants were Roman Catholics with nationalist backgrounds. The Tribunal found that difficulties had arisen between the claimants and the hotel’s general manager as to how to deal with certain disciplinary issues involving staff from Sandy Row, in the context of attacks of a sectarian nature on the hotel and its staff. The claimants were critical of the manager’s perceived failure to take appropriate action and indicated that they wished to initiate a grievance against him. The Tribunal was satisfied that the attacks on the hotel were probably carried out by disgruntled employees or ex-employees in the Sandy Row area in retaliation for disciplinary action previously taken by the claimants and the manager. It further found that ‘the attacks were sectarian in nature and directed particularly to Catholic employees of the hotel, including the claimants, because the word on the street was that a Catholic manager was out to sack all Protestants’. The claimants had been summarily dismissed on grounds of deliberate falsification of attendance records but the Tribunal found that the claimants were not guilty of the alleged offences, that the respondent had not carried out a proper disciplinary investigation or followed its own procedure, and that the respondent had treated particular employees from the Sandy Row area more leniently in the disciplinary process than the claimants. It therefore upheld the claimants’ complaints in respect of religious and political discrimination.

Indirect Discrimination The Fair Employment Act 1989 introduced indirect discrimination provisions to address situations where a requirement or condition is applied or would apply equally to persons not of the same religion or political opinion as the claimant

Religious and Political Opinion Discrimination

315

but is such that the proportion of persons of the same religious belief or political opinion as the claimant who can comply with it is considerably smaller than the proportion of persons not of that religious belief or political opinion who can comply with it. The condition or requirement must be to the detriment of the person complaining of discrimination because he or she cannot comply with it and the person or body applying the condition or requirement must be unable to ‘show [it] to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied’. Some of the specific issues which have had to be addressed by tribunals include defining what is meant by a ‘requirement or condition’, ‘can comply’, ‘considerably smaller’ and ‘justifiable’. While indirect discrimination was first introduced by the 1989 Act, the current provisions in respect of employment are derived from the EU Employment Equality Directive 2000/78/EC, which amended the 1989 Act in 2003. The test since then is that indirect discrimination occurs where an employer applies or would apply a provision, criterion or practice to all persons, regardless of their religious belief or political opinion; where it has the effect of putting people who share a particular religious belief or political opinion at a substantial disadvantage when compared with other persons; and where it puts the complainant at that disadvantage and cannot be shown to be a proportionate means of achieving a legitimate aim (art 3(2B)). In Thompson v Luke Delaney and George Stobbart Ltd (2011) the claimant alleged, among other things, that she was the victim of unlawful indirect discrimination on grounds of her religion by being put under pressure to work on Sundays and at a time which would make it difficult for her to attend her Jehovah’s Witnesses meeting. The Tribunal concluded that: Clearly the requirement for the claimant to work on a Sunday … was an attempt to apply a provision, criterion or practice which would put persons of the same religious belief as the claimant at a particular disadvantage when compared with other persons. As there were other workers who could have covered this shift the Tribunal does not consider that this could be regarded as a proportionate means to achieve a legitimate aim.

The settlement of an indirect discrimination claim in Allen v Fire Authority for Northern Ireland (2005) was published by the Equality Commission in its Casebook of Decisions and Settlements. Here, the recruitment information indicated that the successful candidate must ‘reside within a designated area for the period of time which they were on standby or call out duty’. This was for a post of Divisional Officer, which was advertised on two occasions. Mr Allen was successful on both occasions but did not take up the offers of appointment due to the residence requirement and he alleged that the application of the requirement to reside in a designated area which was predominantly Protestant and Unionist disproportionately disadvantaged members of the Catholic community and Mr Allen himself, who was a Catholic. In settling the case with Mr Allen, the Fire Authority, while not admitting liability, withdrew the requirement as regards standby and call out areas for flexible duty officers.

316

Evelyn Collins

Victimisation and Harassment Discrimination by way of victimisation is also outlawed by FETO (art 3(4)). This means treating someone less favourably than others because he or she has, for example, complained of alleged discrimination or assisted someone else to do so. Harassment is also defined as discrimination under FETO, as a result of an amendment made to bring the legislation into line with EU Employment Equality Directive 2000/78/EC. It means unwanted conduct which has the effect or purpose of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for a person. Harassment on grounds of religious belief or political opinion in Northern Ireland is often called political harassment or sectarian harassment and it can take overt or more subtle forms, such as singing sectarian songs, making sectarian remarks, isolating or refusing to cooperate with someone, or displaying flags or symbols. In Duffy v Ulsterbus (2007) the FET upheld Mr Duffy’s complaint of discrimination on grounds of religious belief, concluding that he had endured a series of acts of discriminatory harassment over a lengthy period, from shortly after he commenced employment in 1995 until he went on sick leave in 2000. He suffered further acts of discriminatory harassment and victimisation in 2001. The Tribunal heard evidence of sustained intimidation of a sectarian nature in comments made to Mr Duffy and in incidents at work and at home. It concluded that the company had not taken such steps as were reasonably practicable to prevent employees from doing the acts complained of, which it found to be acts of discrimination. The company unsuccessfully relied on the defence contained in article 36 of FETO, which provides that: In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act or from doing in the course of his employment acts of the same description.

When this defence does not apply, article 36 provides more generally that employers are liable for the acts of their employees: Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.

Discrimination in Access to Goods, Facilities or Services The Fair Employment and Treatment (NI) Order 1998 outlawed for the first time discrimination on grounds of religious belief or political opinion in the provision of goods, facilities and services which are available to the public (art 28).

Religious and Political Opinion Discrimination

317

This includes the refusal of a service (whether for payment or not) or the provision of a lower standard of service. Examples of the facilities and services in question are accommodation in a hotel or boarding-house, banking, insurance, grants, loans, credit, entertainment, recreation, refreshment, transport, and the services of any profession, trade or business or of any local or public authority. There are exceptions governing the provision of goods, facilities and services provided by or on behalf of a religious denomination where the essential nature of the goods, facilities and services requires them to be provided only to a person holding or not holding a particular religious belief (art 31(3)) and also in respect of goods, facilities and services provided by a registered political party (art 31(4)).

Discrimination in the Disposal or Management of Premises It is unlawful for anyone selling or managing property or premises to discriminate on grounds of religious belief or political opinion. For example, it is unlawful for a landlord to refuse to rent property to someone on the basis of his or her religion or political opinion. Similarly, anyone selling land or premises publicly—whether by advertisement or through an estate agent—may not discriminate either in the terms on which the land or premises are offered, or by refusing to sell to someone on the basis of religion or political opinion (art 29). There are some exceptions to these provisions. For example, they do not apply to people who are renting out part of their own home in which they live, or premises which come within the legal definition of small premises (art 30). The first case considered by a county court under FETO concerning discrimination in the sale of land was McKelvey v McDermott (2005). The complaint arose from the sale of approximately 20 acres of farm land in the Omagh area in 1999. The claimant, a Protestant, successfully alleged that he had been subjected to unlawful religious discrimination in the terms on which Mrs McDermott, a Catholic, had offered to sell the land. The claimant had contacted the vendor’s solicitor on several occasions to discuss the sale and had placed bids on the land, but when he contacted the solicitor prior to the closing date for acceptance of bids he was told that the land was already sold. The county court found that the agreement to sell was tainted with unlawful discrimination and ruled that the land should be sold to the claimant instead.

Discrimination in Further and Higher Education It is unlawful for the governing body of an educational establishment to discriminate against a person in the terms on which it offers to admit him or her to an

318

Evelyn Collins

establishment as a student, or by refusing or deliberately omitting to accept an application for admission to the establishment of a student or, where the person is already a student of the establishment, in the way it affords that student access to any benefits, or by subjecting him or her to any other detriment (art 27). The educational establishments covered by this provision are universities and further education institutions (art 27(2)). It does not apply to any goods, facilities or services provided by the Board of Governors or proprietor of a school, the governing body of a college of education or a person providing training in connection with any employment or occupation as a clergyman or a minister for religion (art 31(5)).

Exceptions There are a number of exceptions to the general principle outlawing discrimination on the grounds of religious belief or political opinion in employment. They include, for example, any employment or occupation as a clergyman or minister of a religious denomination (art 70(1)(a)) and employment or occupation where the essential nature of the job requires it to be done by a person holding or not holding a particular religious belief or political opinion (art 70(3) and (4)). The recruitment and employment of teachers in schools was originally included as an exception to the provisions of the Fair Employment (NI) Act 1976. This has since been narrowed by the amendments required by the Employment Equality Directive 2000/78/EC. Article 71 of FETO now provides that the provisions of the Order do not apply in relation to the recruitment of teachers in schools, with recruitment defined as meaning any step in the process of engagement of a person for employment up to the commencement of employment (art 71A). Thus, the employment of teachers in schools is no longer totally exempt, although in Flynn and Debast v Malcolmson, Laurelhill Community College and South Eastern Education and Library Board (2007) it was argued unsuccessfully that the applicants, two teachers in the school who had applied for the post of Head of Modern Languages and alleged that they had been subject to religious discrimination, should be protected against unlawful religious discrimination as they were seeking promotion which would be outside the more restrictive exception in FETO. This was not accepted by the Court of Appeal, which concluded that recruitment to the post of Head of Modern Languages constituted ‘recruitment’ for the purposes of FETO and thus that the tribunal had no jurisdiction to hear the complaints. More recently, in Brudell v Board of Governors, Ballykelly Primary School and Western Education and Library Board (2010), the FET held that Ms Brudell had been the subject of discrimination on grounds of religious belief in respect of a redundancy selection exercise in which the applicant, along with three other Protestant teachers, was made redundant. No Roman Catholic teacher, including three Catholic teachers who had less service than the applicant, was made

Religious and Political Opinion Discrimination

319

redundant at the same time. The applicant argued that she was selected for redundancy to facilitate a religious headcount in the school designed to keep the number of Catholic teachers in the school in line with the number of Catholic pupils. The defendants argued that the requirement which was relevant in the redundancy situation was that teachers should hold a Catholic Certificate in Religious Education and that if this placed Ms Brudell at a disadvantage it was a proportionate means of achieving a legitimate end. The tribunal’s view was that ‘the respondents were led into error by their perception that fair employment legislation did not apply to the process in which they were involved’. The Equality Commission for Northern Ireland has called for the removal of the exception in FETO concerning the recruitment of teachers in secondary schools and for early consideration to be given to whether the exception should also be removed for primary schools (Recommendations for Change, ECNI, 2009). In 2004 it also published an investigation into this issue, pursuant to its duty under article 71(2) to keep the exception under review. In this it concluded that the law should be amended and that any exceptions for particular teaching posts could be dealt with by way of the ‘genuine occupational qualification’, which allows employers to discriminate when recruiting on grounds of religious belief where the essential nature of the job requires it to be done by a person holding, or not holding, a particular religious belief. An amendment was also made to FETO to allow religion to be taken into account in the selection of people for appointment as police trainees, as an exception to the principle of equal treatment on grounds of religious belief in employment. The provision, known as ‘50-50 recruitment’ to the Police Service of Northern Ireland, was contained in the Police (NI) Act 2000 and the practice continued in place for 10 years until the special provision was removed in 2011. Provision had to be made for this exception to the principle of equal treatment, along with the teachers’ exception mentioned above, in EU equality law, through Article 15 of the Employment Equality Directive 2000/78/EC. The legality of the provision, including its compatibility with the European Convention on Human Rights (ECHR), was confirmed by the Court of Appeal of Northern Ireland in Re Parsons’ Application (2003). There is also an exception in respect of charities, provided for in article 77 of the 1998 Order. This permits legislation to confer benefits on persons of a particular religious belief or a particular political opinion if the legislation was enacted for purposes which are exclusively charitable according to the law in Northern Ireland. The Fair Employment and Treatment (NI) Order 1998 specifically exempts certain actions from challenge as directly or indirectly discriminatory if they are taken as part of an affirmative action programme, a topic dealt with at page 324. There are also three more general exemptions from unlawful discrimination: — Article 2(4) of FETO, a successor to a provision in the 1976 Act, states that discrimination on grounds of political opinion will not be unlawful where that opinion includes approval or acceptance of the use of violence

320

Evelyn Collins

for political ends connected with Northern Ireland. This exemption was unsuccessfully challenged in McConkey and Marks v The Simon Community. The two claimants had been offered jobs with the Simon Community but these offers were withdrawn following Pre-Employment Consultancy Service checks, when it became evident that both men had convictions for paramilitary offences and had served jail terms: one was released in 1996 by the Secretary of State on grounds that the degree of risk he posed was minimal, while the other was released as a result of the Belfast (Good Friday) Agreement 1998. The case went all the way to the House of Lords, which decided that the Simon Community had not refused to employ Mr McConkey and Mr Marks because of their former political beliefs but because of concerns that employing them might pose risks to the vulnerable people they cared for. The House added that ‘even if the Simon Community did indeed dismiss the appellants because of their former approval of the use of violence for political ends connected with the affairs of Northern Ireland, it was lawful for them to do so’. A recent review of voluntary guidelines to encourage employers to employ people with conflict-related convictions has called for the removal of the statutory basis for discrimination against people with such convictions so that ex-prisoners can have equality of opportunity to access the labour market unless their conviction is incompatible with the job, service, facility or goods available (Report of Review Panel: Employers’ Guidance on Recruiting People with Conflict-Related Convictions, 2012). — Article 78 provides that nothing in FETO renders unlawful anything done in order to comply with a requirement of primary legislation passed or made before the 1998 Order; a ‘statutory authority defence’, this provision has been modified by the amendments made in 2003 pursuant to the EU Directive 2000/78/EC and no longer applies to discrimination in the field of employment and the provision of vocational training. — Article 79 provides an exemption for acts done for the purposes of safeguarding national security or protecting public safety or public order, if the doing of the act is justified by that purpose. The Secretary of State may issue a certificate indicating that an act was done for these purposes (art 90) and provision was made for an appeal to a tribunal against such a certificate (art 91). This followed decisions by the European Court of Human Rights (ECtHR) in Devlin v UK (2002) and Devenney v UK (2002).

The Burden of Proof In discrimination cases generally, the burden of proof shifts from the applicant— the complainant—to the respondent once a prima facie case has been made or sufficient primary facts from which an inference of discrimination can be drawn have been established. It is then a matter for the respondent to prove

Religious and Political Opinion Discrimination

321

that the treatment complained of was not on account of a prohibited ground. Regulation 24 of the FETO (Amendment) Regulations (NI) 2003 inserted a new article 38A into the 1998 Order to deal with the burden of proof and this established that where a complainant proves facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed an act of unlawful discrimination against the complainant the tribunal must uphold the complaint unless the respondent proves that he or she did not commit the act in question. In Lennon v Department of Regional Development (2012) Dr Lennon alleged that he had been subjected to less favourable treatment on grounds of his religious belief or political opinion as a result of the failure of the Department to appoint him to the position of Chair of Northern Ireland Water. The tribunal concluded, having weighed its findings on credibility issues attaching to the evidence of some of the witnesses for the respondent and in the context of other findings of fact, that the Department had not provided an adequate non-discriminatory explanation of the less favourable treatment of Dr Lennon and thus found that Dr Lennon had been subjected to unlawful discrimination on grounds of his religious belief.

Where and When to Claim Complaints of discrimination in respect of employment issues are dealt with by the FET (see below), which is administered by the Office of the Industrial Tribunal and Fair Employment Tribunal (OITFET). They must usually be lodged within three months of the date of the claimant’s first knowledge of when the discrimination took place, or within six months of the date on which the discrimination took place, whichever is earlier. If successful, they will often give rise to an award of compensation (art 39). Complaints of discrimination in respect of non-employment issues, such as access to goods, facilities and services, are dealt with by county courts. They must usually be made within six months of the date on which the discrimination took place and again the commonest remedy in respect of a successful claim is an award of compensation (art 40).

The Fair Employment Tribunal The Fair Employment (NI) Act 1989 established the FET, as a specialist tribunal within the industrial tribunal system, to deal with religious and political discrimination cases in employment and this is now governed by Part IX of FETO 1998. Prior to the 1989 Act, complaints were considered and determined by the Fair Employment Agency. The establishment of the FET means that, if a person considers that he or she has been subjected to discrimination on grounds of

322

Evelyn Collins

religious belief or political opinion, he or she can make an application for it to be determined by the FET. The 1989 Act also gave the new Fair Employment Commission (now the Equality Commission) the responsibility to provide advice to those with potential complaints under FETO and also the discretion to provide legal representation at the FET. Article 45 of FETO states that where a prospective complainant or claimant requests the Commission in writing for advice in relation to prospective proceedings in respect of employment, the Commission shall give him or her such advice unless it considers the matter frivolous. Where an individual applies for assistance from the Commission, the Commission must consider the application and may grant assistance if it thinks fit to do so: — on the ground that the case raises a question of principle; — on the ground that it is unreasonable, having regard to the complexity of the case or the applicant’s position in relation to the respondent or another person involved, or to any other matter, to expect the applicant to deal with the case unaided; or — by reason of any other special consideration. In practice, the Commission has many more requests for assistance than it supports. Its decision-making in this regard is governed by the statutory criteria and strategic considerations applied by the Commission as set out in its Policy for the Provision of Advice and Assistance (available on the Commission’s website, www.equalityni.org). Applicants can also represent themselves in the FET, and other organisations such as trade unions can play a role. The remedies which can be awarded where the FET finds that a complaint is well-founded are set out in article 39 of FETO 1998. This provides for any or all of the following: — an order declaring the rights of both parties; — an order requiring compensation to be paid to the applicant, including for injury to feelings; and — a recommendation that within a specified time action appearing to the Tribunal to be practicable is taken for the purpose of obviating or reducing the adverse effect on the applicant, or on any other person, of any unlawful discrimination. Interestingly, statistics published in the 2012 Annual Report of the OITFET show that the number of claims to the FET over the period 2002–03 to 2011–12 had dropped on an annual basis—from 498 in 2002–03 to 137 in 2011–12.

Duties on Employers The 1989 Act marked a significant departure from the previous fair employment legislation and indeed from the model which exists in respect of sex, race and

Religious and Political Opinion Discrimination

323

disability legislation. It placed a number of significant duties on employers to take proactive steps, including the requirement to register with what is now the Equality Commission for Northern Ireland. All private sector employers with more than 10 employees (defined as working more than 16 hours per week) are required to register with the Commission (art 48). When registering, employers must describe their ‘concern’ (ie their business) in general terms and give the name and address of the employer and the number of employees. It is an offence not to register within a month of the time when the concern first satisfied the conditions for registration.

Monitoring the Workforce Under article 52 of FETO all registered employers and all specified public authorities must submit annually to the Equality Commission a monitoring return giving details of the community background, sex and occupational classification of their workforce. This is for the purposes of ascertaining the composition of those employed in a registered concern in Northern Ireland, and those applying to fill vacancies in such a concern. The employer must prepare and serve on the Commission a monitoring return for each year in the form required by the Office of the First and Deputy First Minister. Community background in this context means those who are treated as belonging to the Roman Catholic or the Protestant community or neither in Northern Ireland, and details must be provided of employees, applicants and appointees. In addition, large private sector employers (those with more than 250 employees, full- and part-time) and all public sector employers must provide details of employees who are promoted and those who leave. Regulations have been issued setting out what is required to be submitted to satisfy article 52.

Periodic Reviews and Fair Participation Each registered concern and all specified public authorities are obliged from time to time to review the composition of those employed in, and seeking to be employed in, the concern in Northern Ireland and the employment practices of the concern for the purposes of determining whether the members of each community are enjoying, and are likely to continue to enjoy, fair participation in employment (art 55). Where it appears to an employer in the course of an article 55 review that fair participation in employment is not being provided to members of one or other of the communities, or is not likely to continue to be provided, the employer is under a duty to determine the affirmative action, if any, which would be reasonable and

324

Evelyn Collins

appropriate to take. Where the employer determines in the course of the review that affirmative action would be reasonable and appropriate, he or she must consider whether, assuming the action is taken, it is practicable to determine, by reference to one or more periods, the progress towards fair participation and employment that can reasonably be expected to be made by members of a particular community. If the employer considers it practicable to determine such progress, he or she must determine the period concerned and the progress that can reasonably be expected to be made during that period towards fair participation in the concern by members of the community in question. In undertaking article 55 reviews, employers must have regard to the Code of Practice on fair employment which was issued by the Department for Economic Development (now Office of the First Minister and the Deputy First Minister (OFMDFM)) and provides guidance for employers generally on the requirements of FETO. Fair participation is not defined in the legislation but the Code of Practice indicates that what is fair depends on the circumstances and that employers should be making sustained efforts to promote [fair participation] through affirmative action measures and, if appropriate, the setting of goals and timetables. It does not mean that every job, occupation or position in every undertaking in Northern Ireland must reflect the proportionate distribution of Protestants and Roman Catholics in the province.

Affirmative Action and Equality of Opportunity Affirmative action is defined in article 4 of FETO as action designed to secure fair participation in employment by members of the Protestant or Roman Catholic community in Northern Ireland by means including the adoption of practices encouraging such participation and the modification or abandonment of practices that have or may have the effect of restricting or discouraging such participation. In this context ‘equality of opportunity’ means equality of opportunity between persons of different religious belief. FETO indicates that a person has equality of opportunity with a person of any other religious belief if, being a person who is seeking employment or is in employment or a person who is seeking to be engaged or is engaged in any occupation, he or she has in any circumstances the same opportunity as that other person has or would have in these circumstances, due allowance being made for any material difference in their suitability (art 5). In practice, affirmative action is considered to be a key mechanism for change contained in the employment provisions of the fair employment legislation. It is designed to address under-representation in the workplace and ensure fair participation regardless of community background. The type of affirmative action provisions allowed by FETO includes the encouragement of applications for employment or training for people from under-represented groups, recruitment

Religious and Political Opinion Discrimination

325

from those not in employment, or targeted training in a particular area or at a particular class of persons, and the amendment of redundancy procedures to help fair participation. The determination of what is fair depends on the circumstances of each particular employment situation. The term means that employers should be working continuously, as an integral part of their personnel and management functions and especially in consultation with the Equality Commission, to ensure that equality of opportunity in their employment is offered to both communities.

Provision of Training in Pursuance of Affirmative Action The first type of affirmative action is provided for by article 72 of the 1998 Order, which permits an employer to afford access to facilities for training which would help to fit those attending for employment in general, for employment in a particular capacity, or for employment a particular occupation, even though the training is confined to persons of a particular class ‘not framed by reference to religious belief or political opinion’ and access to the facilities by persons of a particular religious belief or political opinion is excluded or restricted.

Provision of Religion-Specific Training Facilities In addition to the action allowed by article 72, article 76 of the 1998 Order allows the provision of training facilities in a particular place by an employer or person providing training services where this is provided only to persons of a particular belief. Such training schemes require the approval of the Equality Commission, which can be given if at any time within 12 months prior to the provision of the training it appears to the Commission either that there are no people of the religious belief in question employed by this employer or that the proportion is small in comparison with what might reasonably be expected.

Redundancy Article 73 of the 1998 Order allows affirmative action practice to be adopted with regard to redundancy. In appropriate circumstances this could mean that the affirmative action would constitute a successful defence to a claim that an employee had been unfairly selected for redundancy.

Encouraging Applications from the Under-represented Community A further form of affirmative action, allowed by article 74 of the 1998 Order, are measures taken to encourage applications from an under-represented community

326

Evelyn Collins

for employment or training. This permits employers, for example, to strengthen contacts with schools attended by members of the under-represented community with a view to encouraging applicants, or to advertise primarily (or perhaps even exclusively) in one sector of the press. It would seem lawful for employers to advertise the fact that they have set goals and timetables for minority representation in their workforce as a means of encouraging minority applicants to apply. What the section does not permit in ‘encouraging applications’ is actually discriminating in favour of the under-represented community when selecting people for employment or training. However, if merely having a ‘preference’ for people from a particular locality or with particular qualifications or experience (even where this is not shown to be job-related and can be complied with by a substantially smaller section of one community) is not indirectly discriminatory (assuming that a ‘preference’ would not be a ‘condition or requirement’) then it might be lawful to advertise such a preference as part of an affirmative action programme. However, this has still to be tested before the FET.

Selection from the Unemployed The 1998 Order introduced a new form of affirmative action, by providing that it would not be unlawful to have a criterion for selection to the effect that someone must not have been in employment for a specified period (art 75). Without this statutory provision such measures could be challenged as indirectly discriminatory in some parts of Northern Ireland, given the profile of those who are unemployed.

Other Provisions on Equality and Discrimination Northern Ireland Act 1998 Section 75(1) of the Northern Ireland Act 1998 places public authorities under a duty to have due regard to the need to promote equality of opportunity on a range of grounds, including religious belief and political opinion. They also have a duty to have regard to the need to promote good relations between persons of different religious belief or political opinion (s 75(2)). Further details about section 75 are set out in Chapter 12. By section 76(1) of the Northern Ireland Act 1998, acts by government and public bodies which are discriminatory on political or religious grounds are made unlawful and actionable in the courts. This is a re-enactment of section 19(1) of the Northern Ireland Constitution Act 1973 and harks back to the provisions in the Government of Ireland Act 1920 mentioned at the start of this chapter. Orders

Religious and Political Opinion Discrimination

327

in Council can be challenged under this heading and Assembly legislation which discriminates on the grounds of religion or political belief may also be ruled invalid by the courts. Only a small number of cases have so far invoked it, perhaps because it is generally assumed that in this specific context ‘discrimination’ refers only to ‘direct discrimination’.

Human Rights Act 1998 The Human Rights Act 1998 makes Article 14 of the ECHR part of the law of Northern Ireland. This prohibits discrimination in the ‘enjoyment of the rights and freedoms set forth in the Convention’, on a range of grounds including ‘religion’ and ‘political or other opinion’. The scope of this provision is therefore limited, as the discrimination must be linked to another right contained in the Convention, such as the right to a fair trial or to freedom of expression. As the Convention contains no right to work, employment discrimination is not covered by it. In addition, the ECtHR has made it clear that different treatment on religious grounds may be justified if it has a legitimate aim and if the means adopted are proportionate to the aim pursued. Affirmative action is one example of a legitimate aim. Although the Northern Ireland Act 1998 and the Fair Employment and Treatment (NI) Order 1998 are likely to provide a remedy in most cases of discrimination on grounds of religion and political opinion, the Human Rights Act 1998 may still be of relevance where something is not clearly covered by either, for example, policy decisions by UK government departments in Northern Ireland.

The Ombudsman As explained in Chapter 2, the function of the Ombudsman is to deal with complaints from members of the public who claim to have suffered injustice by reason of ‘maladministration’ by those bodies which fall within his or her jurisdiction. Maladministration includes discrimination and since the fair employment legislation largely covers issues of employment discrimination, the Ombudsman tends to restrict his or her attention to cases falling outside the remit of the Equality Commission (eg complaints of discrimination in the provision of public services).

Useful Contacts Equality Commission for Northern Ireland Equality House 7–9 Shaftesbury Square

328 Belfast BT2 7DP tel: +44 28 90 500600 textphone: +44 28 90 500589 Email: [email protected] www.equalityni.org

Evelyn Collins

15 Race Discrimination CIARAN WHITE

International and European law International law prohibits racial discrimination in Article 26 of the UN’s International Covenant on Civil and Political Rights (1966). Neither the International Covenant on Economic, Social and Cultural Rights (1966) nor the European Convention on Human Rights (1950) prohibits racial discrimination in so many words, but they do require states to guarantee that the rights protected by those treaties will be exercised without discrimination based on race. (The latter treaty has now been incorporated into domestic law by the Human Rights Act 1998, which means that it is a remedy that may be availed of in the domestic courts: see Chapter 1.) Protocol 12 to the European Convention on Human Rights prohibits discrimination generally, but the UK has not yet even signed this, let alone ratified it. The UK’s caution in doing so stems from its concern that ratification of the Protocol would result in a flood of litigation on the issue. However, the most significant international legal treaty dealing with racial discrimination is the UN’s Convention on the Elimination of All Forms of Racial Discrimination (1965). This obliges the UK to pursue, by all appropriate means, and without delay, a policy of eliminating racial discrimination in all its forms and to promote understanding amongst all races. The government’s success in meeting these obligations is examined, every two years or so, by the Committee on the Elimination of Racial Discrimination. This Committee’s criticism of the UK for failing to enact anti-racism legislation for Northern Ireland was instrumental in securing the enactment of the Race Relations (NI) Order 1997. The most recent UK report to the Committee was provided in 2010 (CERD/C/GBR/18-20) and was examined by the Committee in 2011. In relation to Northern Ireland, the Committee made particular recommendations that the UK should ‘take immediate steps to ensure that a single equality law and a Bill of Rights are adopted in Northern Ireland or that the Equality Act 2010 is extended to Northern Ireland’ (CERD/C/GBR/CO/18-20, para 19). It also recommended a holistic approach to tackling sectarianism and racism given that, in the Committee’s view, they are related phenomena and there is intersectionality between them. The Committee

330

Ciaran White

invited the UK to explain in its next report the steps it has taken to adopt that approach. The law of the EU, especially its Directives, has also had a significant influence on the shape and content of anti-discrimination legislation in Northern Ireland. The Race and Ethnic Origin Directive (Council Directive 2000/43/EC) and the Framework Employment Equality Directive (Council Directive 2000/78/EC) have expanded and altered the content of Northern Ireland’s equality law code, and some of the changes to anti-racism legislation that have resulted will be referenced at the appropriate point in this chapter. The Burden of Proof Directive (Council Directive 97/80/EC), which establishes when the onus of showing that the actions of the respondent were not discriminatory shifts from the applicant to the respondent, has also been implemented, by means of the Race Relations Regulations (NI) 2003, and has practical implications for the proving of all discrimination claims (see arts 54A and 52B of the 1997 Order). Amongst the prohibited grounds of discrimination listed in Article 21 of the EU’s Charter of Fundamental Rights (which applies to all matters that are within the competence of the EU to deal with) are race, colour, ethnic or social origin, and nationality.

Race and the ‘Statutory Duty’ Before examining the 1997 Order, it is worth mentioning the statutory duty created by section 75 of the Northern Ireland Act 1998. This requires specified public bodies to have due regard, in the performance of their functions, to the need to promote equality of opportunity between—amongst others—persons of different racial groups. It also requires such bodies to have regard to the desirability of promoting good relations between persons of different racial groups. The net effect of these duties is to require those bodies to assess the impact of their policies and administrative activity on persons of minority ethnic status, ameliorating or eradicating any adverse impacts where they occur. The duties are enforced by the Equality Commission for Northern Ireland (see Chapter 12). They should lead to racial discrimination and racial disadvantage being effectively tackled at an institutional level.

The 1997 Order The Race Relations (NI) Order 1997 (as amended by the Race Relations (Amendment) Regulations (NI) 2003 and 2009) is the main anti-racism legislation in Northern Ireland and is very similar to the Race Relations Act 1976 which

Race Discrimination

331

applied in Great Britain prior to 2010, although there are some key differences which will be noted where appropriate. Reference will also be made to the differences between the 1997 Order and the Equality Act 2010, which does not apply in Northern Ireland. The Order outlaws racial discrimination in the workplace, in education, in the availability of goods, facilities and services, and in the disposal and management of premises. It also provides a mechanism for victims of discrimination to obtain redress, and established the Commission for Racial Equality for Northern Ireland (CRE (NI)), subsequently merged, by section 74 of the Northern Ireland Act 1998, with other equality bodies, to form the Equality Commission for Northern Ireland. The Race Relations (Amendment) Act 2000, which had its origins in the MacPherson report into the killing of Stephen Lawrence in 1993, did not apply in Northern Ireland, although elements of it were incorporated by means of other legislation. For example, the Race Relations (Amendment) Regulations 2003 extended the protection given by the 1997 Order and prohibited discrimination or harassment by public authorities in the administering of social security, health care or other ‘social advantage’ not falling within the category of ‘goods, facilities or services’, a change discussed further below. As with all anti-discrimination legislation, there are important concepts which require explanation in order to appreciate the manner in which the legislation operates (see also Chapters 12 and 13).

Direct Discrimination Direct discrimination arises where a person is less favourably treated on the ground of race. In the past, the courts had formulated a very simple test to act as a guide in establishing whether direct discrimination has taken place: ‘Would the complainant have received the same treatment from the defendant but for his or her [race]?’ This is often referred to as the ‘but for’ test (James v Eastleigh Borough Council, 1990). Motives or intentions are irrelevant: if, for instance, an employer refuses to employ a person because he or she fears that that person will be harmed by other racist employees, that still amounts to unlawful discrimination, notwithstanding the fact that it is done with the best of intentions. ‘Race’ need not be the only ground on which a decision was made. It will still be unlawful if race was an important factor in the decision, even though other considerations also influenced it (Owens and Briggs v James,1982). Because discrimination occurs where, on racial grounds, a person treats another less favourably than he or she treats, or would treat, other persons, the victim need not suffer less favourable treatment because of his or her own racial origins. A person who is dismissed because he or she refuses to comply with management’s instructions to expel black youths from the workplace, for example, will be a victim of racial discrimination despite the fact that he or she is white (Showboat Entertainment Centre v Owens, 1984).

332

Ciaran White

The Supreme Court, in R (E) v JFS Governing Body (2009), has more recently considered the issue of how a court must approach the task of assessing whether a person has been ill-treated on the ground of race. This is the most recent and authoritative pronouncement on this issue. Lord Phillips, commenting on the ‘but for’ test in James, said: This ‘but for’ test was another way of identifying the factual criterion that was applied by the Council as the basis for their discrimination, but it is not one that I find helpful. It is better simply to ask what were the facts that the discriminator considered to be determinative when making the relevant decision. (para 17)

And later: Whether there has been discrimination on the ground of sex or race depends upon whether sex or race was the criterion applied as the basis for discrimination. The motive for discriminating according to that criterion is not relevant. (para 20)

He added, referring to passages from Nagarajan v London Transport (1999): Those observations address the situation where the factual criteria which influenced the discriminator to act as he did are not plain. In those circumstances it is necessary to explore the mental processes of the discriminator in order to discover what facts led him to discriminate. This can be illustrated by a simple example. A fat black man goes into a shop to make a purchase. The shop-keeper says ‘I do not serve people like you’. To appraise his conduct it is necessary to know what was the fact that determined his refusal. Was it the fact that the man was fat or the fact that he was black? In the former case the ground of his refusal was not racial; in the latter it was. The reason why the particular fact triggered his reaction is not relevant to the question of the ground upon which he discriminated. (para 22)

There is, however, a decision of the Court of Appeal in Northern Ireland, McDonagh v Thom (t/a Royal Hotel Cookstown) [2007] NICA 3, which sits as an ‘outlier’ in these judicial assessments of direct discrimination. The plaintiffs, Irish Travellers, had been denied the use of a hotel for a wedding function by its proprietors. The proprietors had experienced violence at a Traveller function previously held in their hotel and the staff had refused to work at Traveller functions thereafter. The proprietors allowed Travellers to avail of other services at the hotel but did not allow them to book wedding functions. The Court of Appeal upheld the county court’s rejection of the plaintiffs’ claim of racial discrimination convincing itself that no racism arose because the decision was based on the fear of violence rather than the ethnic origin of the plaintiffs. James v Eastleigh Borough Council was not cited by the court (and as such one might argue that the decision was per incuriam, that is, made without due regard to all the relevant law) and the cogency of the decision in McDonagh v Thom must be further questioned in light of the Supreme Court’s decision in R (E) v JFS Governing Body, cited above. Approaching the matter in the manner posed by Lord Phillips, the hotel proprietors’ decision was based on the plaintiffs’ ethnic identity, because they assumed that all Traveller functions would result in public disorder on their premises.

Race Discrimination

333

The plaintiffs’ identity was the reason which triggered the refusal of service, rather than the prospect of violence alone. Furthermore, examining the matter with reference to the ‘but for’ test, one could say that ‘but for’ their ethnicity they would not have been refused the particular service they sought. Martin McDonagh & Pat Stokes v Event 22 Ltd (OITFET Case refs: 71/04 and 72/04, 18 October 2006) is an example in the field of employment of direct discrimination against two Irish Traveller complainants who each received £12,800, which included aggravated damages and interest. An employee of a employer operating in Northern Ireland but also having equivalent operations in Great Britain can, in principle, compare him- or herself with similar employees of the British operation for the purpose of claiming racial discrimination, that is, that he or she has been less favourably treated on the basis of not being English, Welsh or Scottish. This was the issue in Johnston v BT (2010) after the Court of Appeal had earlier declined to rule on it in isolation from the factual background (Johnston v BT, 2008). It is also discrimination for someone to ‘knowingly aid’ another (art 33 of the 1997 Order) in the commission of an unlawful act under the legislation. Thus, it is no defence for a defendant to say that he was simply acting under instruction or was directed to act in a particular way. Two cases in which the House of Lords has had to consider the application of this concept help to convey its role in combating discrimination. In Anyanwu v South Bank Students’ Union (2001) the complainants were officers of the Students’ Union who were expelled from the South Bank University. This had the effect of requiring their contracts of employment with the Students’ Union to be terminated. The complainants alleged that Students’ Union had subjected them to racial discrimination and that the University had ‘knowingly aided’ them in this. The House of Lords considered that the University’s actions were capable of amounting to knowingly aiding the Student Union and remitted the matter back to the employment tribunal for a rehearing. Their Lordships rejected the Court of Appeal’s view that the party aiding the discriminator needed to be a ‘prime mover’ in order to attract liability. The Tribunals should, they said, give an ordinary view to the meaning of ‘aid’. The concept was also considered in Hallam v Avery (2001) when the culpability of the police for a discriminatory action of a local authority was in issue. The plaintiff was an English Romany who booked the council property for her wedding reception. The police informed the council that it was a ‘gypsy wedding’ and that large numbers might attend and public disorder might ensue. The council’s reaction, in imposing additional conditions on the plaintiff, was a discriminatory act. The more difficult issue, however, was whether the involvement of the police was also an unlawful act because the police could be considered to have knowingly aided the council in performing a discriminatory act. The House of Lords accepted that it was open to the trial judge to conclude that the police were alerting the council to what they considered a potential problem, that there were a number of ways the council could have reacted and that the plaintiff had not demonstrated that the police had knowingly aided the council in discriminating.

334

Ciaran White

Indirect Discrimination Indirect discrimination occurs where an apparently neutral rule or practice is imposed on all, which, while superficially free from racial bias, operates in a disproportionately disadvantageous way upon persons of a particular racial group. The definition of indirect discrimination, in article 3(1A) of the 1997 Order, has been amended to implement EU law (although the previous definition of indirect discrimination continues to apply to racism claims based upon ‘national origin’ and ‘colour’, as explained below). It has four elements: — a provision, criterion or practice (the ‘PCP’ in the jargon of equality lawyers) is applied equally to all; — the PCP puts or would put a particular racial group at a particular disadvantage; — the claimant is a member of the disadvantaged racial group and suffers from the particular disadvantage; and — the PCP cannot be justified in that it does not pursue a legitimate aim in a proportionate manner. A PCP which has a disadvantageous effect on the claimant as a member of a particular racial group will be unlawful unless it is justified, and in order for it to be justified it must be directed at achieving a proper purpose in a manner that impacts the least on the claimant and the group to which he or she belongs. An example will help to explain this. In Ministry of Defence v DeBique (2010) the claimant was a female solider serving as a Foreign and Commonwealth soldier in the British army in the UK. During the course of her service she had become a single parent. Although the Ministry of Defence (MoD) allowed her to adjust her working hours to facilitate childcare, it concluded that this adversely affected the cohesiveness of her unit and so it gave her a formal warning based on her unsuitability as a soldier. As the army encouraged single parents to invite a relative to share their service accommodation in order to help with childcare, she sought to bring her sister from the Caribbean to the UK to look after her daughter. However, her sister, being a foreign national, could only enter the UK as a visitor and remain for six months, and the MoD would not intervene. She therefore complained that the army did not offer the same childcare opportunities to both British and Foreign and Commonwealth soldiers. She also complained that she was at a disadvantage when her position was compared with that of male soldiers. The MoD claimed that the disadvantage arose from the Immigration Rules over which it had no control. The offending PCP was that the claimant’s sister, as a foreign national, could only stay for six months and the claimant was disadvantaged as a single mother and a Foreign and Commonwealth soldier. The Employment Appeal Tribunal accepted that the application of the PCP to her was not a proportionate response to the aim of controlling immigration to the UK and the MoD had not sought the relaxation of the rule in her case, nor had it sought to establish alternative

Race Discrimination

335

childcare arrangements. As such, she had been the subject of indirect race (and sex) discrimination. If the claim of indirect discrimination is made on the grounds of ‘national origin’ or ‘colour’ the justification is viewed in a different manner. In that case it will be indirect discrimination if the proportion of persons from the same racial group as the complainant who can comply with the requirement or condition is considerably smaller than the proportion of persons not belonging to that racial group. The requirement or condition is permissible if it is justifiable and in assessing whether it is justifiable the courts will balance the degree of discrimination against the need for the requirement. In Hampson v Department of Education and Science (1990) the Court of Appeal (though overruled on a different point) said that ‘justifiable’ requires an objective balance between the discriminatory effect of the conditions and the reasonable needs of the party who is applying the condition. The difficulty with this test, however, is that it appears to equate ‘justifiable’ with ‘reasonable’, rather than with ‘necessary’ or ‘extremely important’. An example of a justifiable condition can be found in Panesar v Nestlé Co Ltd (1980), where employees in a confectionery factory were prohibited from wearing beards for hygiene reasons. This condition was held not to be a discriminatory one even though it impacted adversely on Sikhs, because it was a justifiable requirement in the context of that business.

Racial Groups and Racial Grounds Evidently, discrimination on racial grounds, or against racial groups, is unlawful. However, what are ‘racial grounds’ and how does one ascertain what is a ‘racial group’? ‘Racial grounds’ are defined, in article 5(1), as meaning colour, race, nationality, or ethnic or national origins and a racial group is one composed of persons defined by reference to any of these grounds. This is also the meaning given to ‘racial groups’ for the purposes of the equality duty imposed by section 75 of the Northern Ireland Act 1998. It has been left to the courts to provide further guidance on defining what groups are protected by the legislation. This was done by the House of Lords in Mandla v Dowell Lee (1983). In that case a young Sikh boy, who wished to attend a private school, was denied admission on the basis that he could not comply with the school policy on uniforms, because he wore a turban over his unshorn hair, in accordance with the tenets of his religion. Religious discrimination legislation did not then apply in Great Britain and his complaint was that he had suffered racial discrimination. It was thus vital to establish whether Sikhs were an ethnic group protected by the legislation. Lord Fraser set out what he considered were the criteria to judge whether a group was an ethnic one. There are two essential criteria which a group must possess: — a long-shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; and

336

Ciaran White

— a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. There is also a range of non-essential criteria. Compliance with these is not crucial, but it does serve to reinforce the view that the group is an ethnic one. They are: — a common geographical origin or descent from a small number of common ancestors; — a common language not necessarily peculiar to that group; — a common literature peculiar to that group; — a common religion, different from that of neighbouring groups or from the general community surrounding it; and — being a minority, or being an oppressed, or dominant group, within a larger community. In Mandla v Dowell Lee Sikhs were considered to be an ethnic group and the requirement regarding school uniforms was therefore held to be indirectly discriminatory. As a result, a number of legislative amendments had to be made to accommodate Sikhs. One of these makes Sikhs exempt from the requirement to wear safety helmets on construction sites (art 13 of the Employment (Miscellaneous Provisions) (NI) Order 1990). Jews have also been considered an ethnic group (Seide v Gillette Industries Ltd, 1980 and R (E) v JFS Governing Body), as have English Romanies (CRE v Dutton,1989) and Welsh people (Griffiths v Reading University Students’ Union, 1997). In BBC Scotland v Souster (2001) it was held that English and Scottish persons could benefit from protection of the Race Relations Act 1976 on the basis that discrimination against them would be on the basis of their ‘national origins’. In a Northern Ireland case, Mark Robins v Norfil Ltd (1997), an Englishman secured an award of £3,000 for racial abuse which he suffered at his place of employment in Antrim. However, Rastafarians do not qualify for protection (Crown Suppliers (PSA) v Dawkins,1991). A significant difference between the English legislation and the Northern Ireland Order is that, in article 5(2)(a) of the 1997 Order, Travellers are specifically included as an ethnic group protected by the legislation. They are defined as: the community of people commonly so called who are defined (both by themselves and by others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland.

Because of the existence of the Fair Employment (NI) Acts 1976–89, the Race Relations (NI) Order specifically withheld protection from groups defined by reference to religious belief or political opinion. This means that Catholics and Protestants, for example, are not in a position to use the 1997 Order when they allege discrimination on the basis of their religious identities. Instead, they must bring a complaint under the fair employment legislation, if possible (see Chapter 14). However, if they can prove that the discrimination was on the basis of their

Race Discrimination

337

‘Irishness’ or ‘Britishness’, they may be protected by the 1997 Order. So, for example, in Clare Doherty v Belfast Tile Company (2008) a Northern Irish-born claimant successfully claimed that she had been racially discriminated against when she was not appointed to a position as a bilingual English and Spanish secretary, the job having been given to a Spanish candidate. And in Frank Geary and Martin Dowling v Queen’s University Belfast (1999) the claimants successfully alleged that an interview panel was biased towards the English candidates and against them as persons who were not English.

Segregation Segregating persons on racial grounds is ‘less favourable treatment’ (art 3(3)) and therefore always amounts to direct discrimination. This ensures that those of a racist mentality cannot escape the effect of the legislation by arguing, for example, that they have provided facilities of an identical, but segregated, nature for different racial or ethnic groups and that therefore no group has been less favourably treated. Thus, if an employer has separate toilets for Asian and white employees, this will amount to unlawful racial segregation (Qadus v Henry Dobinson (Ironfounders) Ltd, 1980).

Victimisation Victimisation occurs where a person is subject to less favourable treatment because he or she has: — brought a case under the 1997 Order; — given evidence or information in connection with a case brought by someone else; — alleged that a person has contravened the Order; or — done anything under the legislation. Victimisation occurs where the victim is treated less favourably merely because the discriminator believes, or suspects, that the victim has done, or intends to do, any of these acts (art 4). However, in two cases the victimisation provisions in England have been narrowly interpreted, presenting difficulties for future complainants. In Kirby v Manpower Services Commission (1980) an employee in a Job Centre was transferred to less desirable work after he reported incidents of alleged racial discrimination on the part of employers to the local Community Relations Council. His employers considered that his actions amounted to a breach of confidence and justified his transfer on that basis. The industrial tribunal considered that the transfer did not amount to victimisation because any employee disclosing confidential information would have been treated in this way. In Aziz v Trinity Street Taxis (1988) an Asian taxi driver, who felt that he was unfairly discriminated against in the fee he was being charged by the organisation to operate another taxi,

338

Ciaran White

made a complaint to an industrial tribunal. In the course of the proceedings it was disclosed that Mr Aziz had secretly recorded conversations with other members of the organisation to support his claim. He was subsequently expelled from the organisation. His complaint of victimisation failed because the Court of Appeal accepted the organisation’s assertion that it had expelled Mr Aziz because he had breached the trust of the other members of the organisation. The victimisation provisions, therefore, protect a person only if the action taken against him or her follows because it is known, or believed, that he or she has made use of the Order and not because of some other reason. Some other cases have shed further light on the operation of the victimisation provisions. In Nagarajan v London Regional Transport (1999) the complainant had taken action against the respondents, his employers, on previous occasions. He then applied for another position within the company but was unsuccessful. In the course of proceedings it emerged that the company considered that his attitude was too ‘anti-management’. The Tribunal considered that the company’s view on this was influenced, consciously or subconsciously, by the earlier complaints he had made and accordingly the company was guilty of victimisation. The House of Lords confirmed that in establishing victimisation the complainant does not have to prove that the respondent was motivated by a conscious or deliberate desire to treat the complainant less favourably because he had made complaints previously. It is enough that the evidence allows the tribunal to infer from the evidence that the respondent has been influenced, even subconsciously, by the previous discrimination complaints. In Chief Constable of the West Yorkshire Police v Khan (2001) it was alleged that the Chief Constable’s decision not to issue Khan with a reference in respect of his application to join another police force because the police officer had lodged a discrimination complaint against the Chief Constable, which complaint was still pending, was victimisation. The Chief Constable argued that he would ordinarily issue references but not where there were proceedings pending against him. The House of Lords considered that because the Chief Constable was seeking to preserve his position, and because the decision had been taken because of the existence of proceedings, not ‘by reason of ’ them, he was not guilty of victimisation. However, had it not been for this distinction, the Chief Constable would have been guilty of victimisation as the House of Lords considered that the complainant had been less favourably treated in the refusal to issue him a reference. These cases show that motive is also irrelevant in establishing victimisation, and that it can be inferred from the circumstances, unless the respondent can show that some reason other than the commencement of the proceedings motivated the treatment of the complainant.

Employment Discrimination in the recruitment of new employees or in the treatment of existing employees is outlawed. There is no limit to the size of firm, company or

Race Discrimination

339

organisation to which the legislation applies. Similarly, trade unions and employers’ organisations may not discriminate when considering applications for membership or when affording members access to benefits, facilities or services. Bodies which confer qualifications which are necessary to allow persons to engage in a particular trade or profession are also covered by the Order. Those involved in vocational training which would equip a person for employment are prohibited from discriminating in the terms on which they provide access to that training or to the facilities concerned with that training. Partnerships are also included within the ambit of the legislation, so partners may not discriminate when selecting a new partner, when setting the remuneration for an existing partner, or in their treatment of existing partners. Barristers may not discriminate when choosing a ‘pupil’ (ie trainee barrister) and it is also unlawful for any person to discriminate when instructing a barrister. Recruitment to the police must also be conducted in accordance with the legislation. The legislation extends protection to contract workers, so that a builder who has a contract with another firm, which pays considerably more than other work which he is contracted to do, is guilty of discrimination where he denies a Polish worker, for example, the opportunity to work on that more lucrative contract because he is Polish (art 9).

Genuine Occupational Qualifications If it is a ‘genuine occupational qualification’ (GOQ) that a person be of a particular ethnic group then an employer will have an effective defence (arts 7A and 8). This means that if it can be demonstrated that it is a bona fiderequirement that the post-holder be of a certain ethnic origin, it is not unlawful discrimination to prefer such a person. In order to benefit from this protection the employer must show either that: (1) being of a particular ethnic group is a genuine and determining occupational requirement and that it is proportionate to rely on that requirement (art 7A); or that (2) the job in question is one of certain prescribed occupations where a person of a particular ethnic group is required for reasons of authenticity (art 8). These occupations are: — dramatic performances or other entertainments; — modelling as an artist’s or photographer’s model; and — working in a place where food and drink are provided to and consumed by the public. The defence also applies where a person is needed to provide personal services promoting the welfare of a particular group and these services can most effectively be provided by a person of that racial group. Employing a Chinese person, therefore, to act as a health visitor to the Chinese community is not unlawful provided that a person of that ethnic origin is best placed to deliver those services to the Chinese community.

340

Ciaran White

Vicarious Liability Employers are liable for acts of discrimination committed by employees in the course of their employment, whether or not the acts are done with the employer’s knowledge or approval (art 32(1)). They have a defence if they can prove that they took such steps as were ‘reasonably practicable’ to prevent the employee from either doing a particular act or doing similar acts (art 32(5)). If the employer does avail themselves of this defence (eg because he or she has provided anti-racism training) then the only other option open to the victim is to bring proceedings against the employee alone. However, the employee is often unlikely to be in a position to afford to pay damages.

Affirmative Action Measures Positive discrimination, for example, preferring a black person to a white person for a vacant position because black persons are under-represented in the workforce, is unlawful. It could be lawful only if it were a ‘genuine occupational qualification’ (see above) that the person be, say, of African-Caribbean origin. But although the legislation does not authorise positive discrimination, it does allow for what are generally termed ‘affirmative measures’. These provide exemptions from the Order where access to training facilities is provided for, or encouragement directed at, members of a particular racial group generally to service the special needs of the racial group where this is required in relation to education, training or welfare (art 35). English language instruction for members of minority ethnic communities might qualify as a ‘special need’ for these purposes (see the section on ‘Positive Action’ in the Equality Commission’s Code of Practice for the elimination of racial discrimination and the promotion of equality of opportunity in employment). If the employer seeks to restrict training facilities to particular racial groups only, in order to be immune from legal action it must demonstrate that in the previous 12 months there has been an under-representation of persons from that group in a particular sector of the workforce (art 37). In addition, no claim of racial discrimination can be made where an employer insists on filling a vacancy from the long-term unemployed and therefore stipulates that the vacancy is only available to persons who have been unemployed for a certain length of time (art 36A).

Education Discrimination by either public or private educational establishments in relation to an application for admission to a school, college or university, or in the treatment of existing pupils in those establishments, is prohibited by article 18 of the

Race Discrimination

341

1997 Order. Harassment of a pupil or a prospective pupil is also unlawful conduct. This prohibition applies to all levels of education from primary to tertiary. Education and Library Boards and the Council for Catholic Maintained Schools (CCMS) are under a further duty not to discriminate (art 19). There is also a general duty on public sector educational establishments to ‘secure that facilities for education, and any ancillary benefits or services are provided without racial discrimination’ (art 20). This general duty should persuade educational establishments to ‘equality-proof ’ their provision. The enforcement of provisions relating to education is slightly different from that for other provisions. For instance, the Department of Education can intervene to issue directions to an educational establishment or authority which has failed to observe article 18, 19 or 20 (art 21). If the Department refuses to enforce the law, an individual might be able to obtain a judicial review of that refusal. An individual’s right to bring a complaint to a county court where the discrimination is related to an admission decision, the treatment of a pupil or the discharge by an Education and Library Board or the CCMS of its statutory duties, is not affected. However, before initiating proceedings the individual has to give the Department notice of its intention to bring the claim (and where the claim is based on ‘colour’ or ‘nationality’ the individual has to give the Department two months’ notice) (art 54(5)). The duty of education authorities to comply with parental preference concerning the school at which they wish their child to be educated (see Chapter 22) is not limited by the racial discrimination legislation. In R v Cleveland County Council, ex parte CRE (1990) the Court of Appeal had to interpret the relationship between these two laws. A mother wished to have her daughter (who was of mixed English and African descent) moved from a primary school with nearly all Asian pupils to one that was predominantly white. The request was made because the mother feared that her child would learn Urdu at the expense of English. The court concluded that the local education authority had not committed an unlawful act in acceding to the mother’s request.

Goods, Facilities and Services Goods, facilities and services made available to the public, or to a section of it, whether for payment or not, cannot be provided or made available in a racially discriminatory manner. The legislation helpfully provides examples of what amounts to ‘facilities’ and ‘services’. These are: — access to public places; — availability of accommodation in hotels, boarding houses or similar establishments; — facilities by way of banking or insurance for grants, loans, credit or finance;

342

Ciaran White

— entertainment, recreation or refreshment facilities; — education facilities, transport or travel services; and — services provided by a profession or trade, or by a local or public authority. The services of a ‘local or public authority’ are not further defined. However, the courts in Great Britain have had occasion to interpret this part of the equivalent legislation there. In Hillingdon v Commission for Racial Equality (1982) it was accepted that housing provision is a service for the purposes of this legislation, although housing allocation by a public authority is also covered by the provisions relating to premises (see below). The terms of the legislation in Northern Ireland at present would also include this service within the protection of the legislation. A major limitation on the applicability of the provision resulted from a House of Lords decision in R v Entry Clearance Officer, Bombay, ex parte Amin (1983), where their Lordships decided that a refusal by an immigration officer in Bombay to issue a special voucher to an Indian woman to enable her to settle in the UK, on the ground that a woman could not be a head of household, was not in relation to a ‘service’ provided by a public authority. ‘Goods, facilities and services’ was to be construed as applying to acts which were at least similar to acts which could be done by private persons and the Entry Clearance Officer was not providing a service but performing the duty of controlling would-be immigrants. This suggested that there was a range of governmental activities that would not be covered by anti-racism legislation and that government bodies could discriminate with impunity in those areas. The scope of this provision was further confused by Savjani v Inland Revenue Commissioners (IRC) (1981), where the Court of Appeal held that the IRC, in complying with their duty to collect tax, also provided a service for the purposes of the Race Relations Act because they determined the manner in which a person demonstrated that he or she was entitled to tax relief. Mr Savjani had therefore suffered discrimination because he was required to produce a full birth certificate for his child before obtaining relief, whereas non-Indians were required to produce only a short birth certificate. The courts have also concluded that the Race Relations Act 1976 applied to a prisoner who was refused a position in the prison kitchen on the grounds of race (Alexander v Home Office, 1988) and that a disabled person detained in an immigration detention centre was entitled to claim that he had been discriminated against in the provision of services within the centre, under the Disability Discrimination Act 1995 (Gichura v Home Office, 2008). Discrimination by public authorities generally has since been outlawed in Northern Ireland by the Race Relations Order (Amendment) Regulations (NI) 2003, which added a new article 20A to the 1997 Order as explained above. This makes it unlawful for a public authority to racially discriminate or harass in the provision of ‘(i) any form of social security; (ii) healthcare; (iii) any other form of social protection, or (iv) any form of social advantage’. It includes the administration of the immigration system, although claims of discrimination against immigration officials are usually confined to substantive immigration proceedings, so generally speaking

Race Discrimination

343

a separate county court action alleging race discrimination cannot be begun (art 54A). There are also exceptions for allegations of discrimination by judicial authorities and by the Public Prosecution Service (PPS) in regard to prosecutorial decisions. The analysis offered in Amin, namely that not all public functions amount to services in the context of anti-racism legislation, may continue to limit the efficacy of this provision. The position in England and Wales has since been considerably altered by section 29 of the Equality Act 2010 which simply outlaws discrimination by all service providers providing a service to the public, without offering a list of examples, and also prohibits discrimination in the delivery of any other public function which is not a service to the public. This simple, straightforward provision provides much more obvious protection from discrimination by public authorities than does the equivalent Northern Ireland provision. This form of discrimination makes up a considerable portion of the Equality Commission’s race equality caseload, and often takes the form of denial of service to Travellers in shops and pubs. The first case of this kind, Ward v The Olive Grove, was heard in a county court at the end of 1999, with each of the four Traveller applicants being awarded £2,500 compensation. Another example is Maughan and McDonagh v Dawn Tecey t/a Just-in Boutique, 2000, in which the court concluded that there was discrimination in the refusal of the defendant boutique to allow Irish Traveller women to try on some clothes.

Trade Unions, Clubs and Private Organisations Trade unions are prohibited from racially discriminating or harassing members or persons applying to be members (art 13). Most private clubs are now covered by the race relations legislation as well. Associations with more than 25 members may not discriminate in admitting a person as a member or in allowing him or her to avail themselves of any of the benefits offered to members (art 25). But some clubs remain exempt. Associations whose main object is ‘to enable the benefits of membership to be enjoyed by persons of a particular racial group, defined otherwise than by reference to colour’ are not subject to the legislation. Thus a Zimbabwean Students’ Association, for instance, although restricting membership to one racial group, would not be guilty of discrimination because non-Zimbabweans are not permitted to join. However, such an association would be guilty of discrimination if it refused to admit white Zimbabweans.

Premises Landlords, estate agents, rental agencies and anyone selling, letting or in any way disposing of premises in Northern Ireland, may not discriminate on racial grounds (art 22). This prohibition extends to both the public and private sectors. Private individuals selling their homes escape the effects of the legislation

344

Ciaran White

but only if the discrimination is on grounds of colour or nationality and if they do not use the services of an estate agent and do not publish adverts indicating that the property is for sale. Otherwise, refusing to sell property to a minority ethnic person would amount to discrimination, as would charging a higher price to such a person. Where premises are ‘small’ and the person selling or renting the property, or a near relative of theirs (eg spouse, civil partner, parent, child or grandchild), continues to live in the residential accommodation, sharing it with the other persons, then it will not amount to discrimination if the ‘colour’ or ‘nationality’ are the reasons for the decision. ‘Small premises’ are those where (a) the residential accommodation comprises no more than two other households and (b) the premises cannot accommodate more than six persons, excluding the relevant occupier and his or her near relatives.

Exemptions There are a number of circumstances where the 1997 Order is deemed not to apply. These are briefly set out as follows: — Any action carried out in accordance with legislation is not unlawful under the Order but only if it is on grounds of ‘colour’ or ‘nationality’ (art 40(1)). — An act of discrimination based on a person’s nationality, place of residence or length of residence inside or outside the UK is not unlawful if it is done to comply with any statutory provision or with any arrangement approved, or condition imposed, by a Northern Ireland or UK minister or government department (art 40(2)). — Acts which are done for the purpose of safeguarding national security, or protecting public safety or public order, are not unlawful (art 41). This exemption is wider than that found in Great Britain, now in section 192 of the Equality Act 2010, which provides: ‘A person does not contravene this Act only by doing, for the purpose of safeguarding national security, anything it is proportionate to do for that purpose.’ — Sports associations or competition organisers are not guilty of discrimination where nationality, place of birth, or length of residence requirements are imposed in order to determine whether a person is eligible to represent some area or to compete in any sporting competition (art 38).

The Duty on District Councils Every district council is under a duty to make appropriate arrangements with a view to securing that its various functions are carried out with due regard to the need—

Race Discrimination

345

(a) eliminate unlawful racial discrimination; and (b) promote equality of opportunity and good relations between persons of different racial groups (art 67).

This is a duty to be pro-active in eliminating racial discrimination and in that sense is similar to, though more extensive than, the general duty on public sector education establishments found in article 20. It differs from almost all of the provisions examined so far in that, whereas those provisions prevent unlawful discrimination, this duty obliges councils to consider how they might go about eliminating it, and how they might promote good relations. On the other hand, given that district councils in Northern Ireland are responsible for a narrower range of activity than their counterparts in Great Britain, this duty is not as significant in Northern Ireland as it might be there. In any event, the duty has largely been superseded by section 75 of the Northern Ireland Act 1998 (see Chapter 12). The equivalent duty in the 1976 Act—section 71—had been interpreted by the courts in a number of cases. Wheeler v Leicester City Council (1985) is perhaps the best known of these. The Council had imposed a ban on Leicester City Rugby Football Club using council property. It did this because three club members had played on the English Rugby Football Union’s 1984 tour of South Africa. The Council defended its action on the basis that it was acting in accordance with its duty to promote good race relations having regard to the significant number of persons of Asian or African-Caribbean ethnic origin in its area. However, the House of Lords held that the ban was unreasonable and that the club was being punished although it had done no wrong.

The Criminal Justice System Anti-race discrimination legislation applies to all aspects of the criminal justice system with the exception of judicial acts and prosecutorial decisions of the Public Prosecution Service. The extension of the legislation to the police was driven by the report into the Stephen Lawrence Inquiry (see page 331 above). Information on ethnic minorities within the criminal justice system should be made available to criminal justice service agencies, as well as to the public. Under article 56(1) (b) of the Criminal Justice (NI) Order 1996 (a provision similar to s 95(1)(b) of the Criminal Justice Act 1991 applicable in England and Wales), the Secretary of State is required to publish such information as he or she considers expedient for the purpose of ‘‘facilitating the performance by ... persons [engaged in the administration of criminal justice] of their duty to avoid discriminating against any person on any improper ground’.

So, for example, Trends in Hate Motivated Incidents and Crimes Recorded by the Police in Northern Ireland 2004/05 to 2010/12 is an annual bulletin published by the Northern Ireland Statistics and Research Agency and the Police Service

346

Ciaran White

of Northern Ireland (and available on the PSNI website), which analyses the recorded racial incidents and crimes in the period in question. It notes that: The number of racist incidents fell by 146 (17.3 per cent) between 2010/11 and 2011/12. The number of racist crimes also fell, from 531 in 2010/11 to 458 in 2011/12 (13.7 per cent). The number of racist incidents and racist crimes recorded during 2011/12 is the lowest since the data series began in 2004/05. At 16.8 per cent the sanction detection rate for 2011/12 is 3.4 percentage points higher than the level recorded in 2010/11 and is the highest sanction detection rate recorded since the start of this data series. (para 2.1)

The recorded figures provide a breakdown of the ethnic background of those subjected to racist crimes and the single largest category of persons to endure such ill-treatment were persons of white ethnic origin, which includes all Northern and Southern European nationals, as well as ‘Dark Europeans’ (sic) and Irish Travellers (para 2.3.1). This category is subdivided by nationality and, while it is useful to detect the numbers of racially motivated crimes directed at East European migrants in particular, the categorisation does nothing to record the true nature of such crimes against Irish Travellers (who are presumably categorised under ‘UK and Ireland’), and could have the effect of distorting the assessment of the nature of racially-motivated crimes. For example, including ‘Dark Europeans’ in the ‘white’ ethnic category may suggest that some of this behaviour is based on antipathy towards economic migrants rather than on skin colour. ‘Detection rates’ (ie ‘clear up’ rates) for race crimes is greater than for detection rates for all crimes generally. However, the range of material produced about ethnic minorities in the criminal justice system is very patchy and could be greatly improved. For example, the use of police stop and search powers in relation to members of minority ethnic groups has long been a source of controversy across the UK, with some studies showing a disproportionate use of those powers against persons of minority ethnicity. As a result, many police forces now record and monitor the racial background of those persons subjected to stop and search powers. While the PSNI website makes statistics available about the use made of stop and search powers, no breakdown is provided of the statistics by ethnicity (or indeed for any other characteristic, such as age or gender). Likewise, the Northern Ireland Prison Service’s prison population statistics provide a breakdown of, and information about, foreign nationals but say nothing about the ethnic origin of prisoners. Even then, the information is not disaggregated by individuals’ nationality, with statistics simply being given for ‘Foreign National Prisoners’. However, the Owers Review of the Northern Ireland Prison Service did provide some detail about race in the Northern Ireland prison system. It explained that the majority of foreign nationals are from Eastern Europe, primarily Lithuania and Poland, or from China, and that around 1 per cent of the prison population is black or South Asian, with Irish Travellers making up about a further 1 per cent of the population. It explained that the Prison service ‘collates annual statistics on use of force and regime levels by ethnicity and nationality, and

Race Discrimination

347

that they did not show any areas of concern except for high usages of force against Travellers in HMP Maghaberry and HMP Hydebank Wood’. The Review noted that its discussions with prisoners of ethnic minority origin revealed that ‘it was clear that there was a considerable degree of cultural and racial blindness’ and that ‘to varying degrees, prisoners reported discriminatory attitudes and treatment, varying from casual racism, often exhibited in the use of discretion’. (Review of the Northern Ireland Prison Service Conditions, Management and Oversight of All Prisons, page 39).

Equality Commission for Northern Ireland The work of this Commission is described more generally in Chapter 12. As far as racial discrimination is concerned, the Code of Practice for Employers on the Elimination of Racial Discrimination and the Promotion of Equality of Opportunity in Employment was issued in 1999. A Code of Practice: Racial Equality in the Provision of Housing and Accommodationwas put out for consultation in 2007 but has not yet been finalised. Failure to adhere to any provision of such codes is not itself an unlawful act but, in any cases taken under the Order, such failure could be used as evidence in a court or tribunal. The Equality Commission for Northern Ireland has produced a variety of documents in the employment field, such as Employing Migrant Workers—A Good Practice Guide for Employers for Promoting Equality of Opportunity, which provides employers with practical guidance on how best to comply with their responsibilities under Northern Ireland’s anti-discrimination laws towards migrant workers. Other relevant publications include Racial Harassment at Work—What Employers Can Do About It (2000). The Commission has also issued a good practice guide on racial equality in education (2001) (‘Racial Equality in Education—Good Practice guide’) and Race Equality in Health and Social Care—A short guide to good practice in service provision (2011), as well as jointly publishing, with Traveller Movement (NI), a ‘Good Practice Guide to Promote Racial Equality in Planning for Travellers’ (2004). It has produced a simplified outline of the law in this area entitled Race Discrimination Law—A short guide (2010) and a number of easy-to-understand guides to a person’s legal rights, such as Racism is Illegal—You Have Rights: An Information Handbook for Northern Ireland (2006), available in a range of languages, and Treated unfairly because of your colour, race, nationality, ethnic or national origins? (2012) In 2011–12, of the 3,200 advice inquiries made to the Equality Commission, 12 per cent related to race. The Commission has very limited resources which it must use strategically and it was only able to grant assistance to 85 of the 3,200 who made inquiries.

348

Ciaran White

Monitoring Workforce Composition While there is no legal obligation on employers in Northern Ireland to monitor the ethnic composition of their workforces, such monitoring would constitute good practice and would be useful to employers when endeavouring to establish that they have behaved in accordance with equality law. This monitoring could be dovetailed with that undertaken for the purpose of complying with the fair employment legislation (see Chapter 14) or with the section 75 duties in the case of public bodies (see Chapter 12). The Equality Commission recommends that employers engage in racial monitoring and provides some guidance to that end in the Code of Practice for employers (at page 20).

Useful Contacts Equality Commission for Northern Ireland Equality House 7-9 Shaftesbury Square Belfast BT2 7DP tel: 028 90 500 600 www.equalityni.org Northern Ireland Council for Ethnic Minorities Ascot House, 3rd floor 24-31 Shaftesbury Square Belfast BT2 7DB tel: 028 9023 8645 www.nicem.org.uk Police Service of Northern Ireland: Statistics on hate crime: www.psni.police.uk/index/hate_crime_reporting.htm

16 Disability Discrimination GEORGE KILPATRICK

The Disability Discrimination Act 1995 (DDA) aims to deal with the discrimination which disabled people face every day regarding employment, membership of trade organisations, and access to goods, facilities, services, premises, transport and education. In Great Britain, disability discrimination is now primarily addressed via the Equality Act 2010, which does not apply in Northern Ireland. However, as there are still strong similarities between principles in the DDA and the Equality Act, case law developments in Great Britain are likely to impact on the law in Northern Ireland. The definition of a disabled person is still broadly the same. European influence on employment law, in particular through Directive 2000/78/EC on equal treatment in employment (the Framework Directive), has resulted in several changes to the DDA. These include the Disability Discrimination Act 1995 (Amendment) Regulations (NI) 2004 (the Amendment Regulations). Further significant amendments were introduced by the Disability Discrimination (NI) Order 2006 (DDO). Other secondary legislation made under the DDA is referred to below. Within the area of education, legislation in the form of the Special Educational Needs and Disability (NI) Order 2005 (SENDO) is in now in place. Helpful publications are available from The Stationery Office and the Equality Commission for Northern Ireland (ECNI). They include the following: — Guidance on matters to be taken into account in determining questions relating to the definition of disability (the government Guidance) — Disability Code of Practice: Employment and Occupation (the Employment Code) — Disability Code of Practice: Trade Organisations and Qualifications Bodies (the Trade Code) — Code of Practice on Rights of Access, Goods, Facilities, Services and Premises (the Part 3 Code) — Code of Practice on Provision and Use of Transport Vehicles (the Transport Code) — Disability Discrimination: Code of Practice for Schools (the Schools Code) — Disability Discrimination: Code of Practice for Further and Higher Education (the FHE Code)

350

George Kilpatrick

These publications do not impose any legal obligations themselves, but tribunals and courts must take them into account when they appear relevant. Certain provisions of the DDA apply across all areas. Under section 57 (art 44 of SENDO), if someone knowingly helps someone else to do something unlawful under the DDA (or SENDO) then that person is also acting unlawfully, although a breach of this provision will not occur if the person aiding the act does so on the basis of a statement from the other person that the act would not be unlawful because of any provision of the DDA or SENDO and if the first person reasonably acted in reliance on that statement. The person who makes, knowingly or recklessly, such a false or misleading statement is guilty of a criminal offence giving rise to a fine at level 5 (currently £5,000). In addition, an employer can be liable for the discriminatory acts of his or her staff done in the course of employment (irrespective of knowledge or approval on the employer’s part) unless, pursuant to section 58 of the DDA, the employer proves that he or she took such steps as were reasonably practicable to prevent the employee from discriminating (the equivalent provision in SENDO is art 45). Section 59 exempts some acts that are done under statutory authority or for reasons of national security.

Who is Protected by the DDA? With the exception of victimisation and associative discrimination proceedings (see below), to take advantage of the rights conferred by the DDA, a person must have ‘a physical or mental impairment which has a substantial and long term adverse effect on his (sic) ability to carry out normal day-to-day activities’ (section 1). There is no protection for those who might be perceived as being disabled. Schedule 1 of the DDA expands on this definition, as does the government Guidance. The leading authority of Goodwin v The Patent Office (1999) emphasises the importance of adopting an inquisitorial and purposive approach when ascertaining whether a person meets the statutory definition of disability. The person bringing a claim of disability discrimination must show that he or she was a disabled person for the purposes of the DDA at the date of the alleged discriminatory act. This is also the material time when determining whether the impairment has a long-term effect (see below). Being regarded as disabled under other pieces of legislation, for example, in relation to benefits entitlements, does not always mean that an individual will be regarded as a disabled person for the purposes of the DDA, but it will certainly help to show that the DDA definition is satisfied.

Deemed Disabilities A document purporting to be a certificate of registration issued under the Disabled Persons (Employment) Act (NI) 1945 is treated as conclusive evidence of

Disability Discrimination

351

a person’s registration under that Act and all people who were disabled when the DDA 1995 came into effect are deemed to have been disabled at that time. Going forward, they will have to show that they meet the definition in section 1 of the DDA, or prove discrimination on the basis of a past disability. Article 18 of the DDO makes it clear that those who are diagnosed with cancer, HIV or multiple sclerosis are deemed to be disabled from the date of the diagnosis. Babies and children under six years old with impairments that would be regarded as a disability in an older person are also regarded as disabled under the DDA.

Physical Impairments and Sensory Disabilities There is no definition of what amounts to ‘a physical impairment.’ The Disability Discrimination (Meaning of Disability) Regulations (NI) 1996 (the Meaning of Disability Regulations) exclude certain impairments which might otherwise be regarded as physical impairments. An example is ‘seasonal allergenic rhinitis’, more commonly known as hay fever. However, this exclusion does not apply if, for example, the hay fever activates another condition, such as asthma. The Meaning of Disability Regulations also exclude addictions to nicotine, alcohol or another substance, unless the addiction has arisen as a result of medical treatment or administration of medically prescribed drugs. The government Guidance states that the term ‘mental or physical impairment’ should be given its ordinary meaning, but this may not always be possible (see below). According to the Court of Appeal of England and Wales in McNicol v Balfour Beatty Rail Maintenance Ltd (2002), an impairment ‘may result from an illness or it may consist of an illness’. There are cases where physical symptoms are reported but doctors cannot identify an organic physical cause for them, believing rather that the symptoms result from the patient’s mental state. Examples include the McNicol case itself, where the court held that employees suffering from such ‘functional’ or ‘psychological overlay’ did not have physical impairments for the purposes of the DDA despite reporting physical symptoms. Difficulties for the employees in those cases might have been reduced if they had sought to argue that their conditions were physical or mental impairments. In the later decision of College of Ripon and St John v Hobbs (2002) the medical evidence was that there was ‘no organic disease process causing the symptoms [of muscle wasting]’ and that ‘her disability [was] not therefore organic’. In the view of the Employment Appeal Tribunal (EAT), the tribunal had been entitled to hold on the evidence before it that there was still a ‘physical impairment’ and that it was not necessary to know precisely what underlying factor had caused it. The difference between these two cases is that in McNicol it was accepted that there was no physical impairment while in Hobbs no evidence to undermine the existence of a physical impairment was advanced. It will not always be essential for a tribunal to identify a specific ‘impairment’ if its existence can be established from the evidence of an adverse effect on the

352

George Kilpatrick

individual’s abilities: J v DLA Piper UK LLP (2010). Parliamentary debates make it clear that sensory impairments are intended to be covered by the legislation. However, it has been difficult for partially sighted individuals to establish that they are disabled for the purposes of the legislation.

Mental Impairments There is no definition of ‘mental impairment’, but in Morgan v Staffordshire University (2002) detailed guidelines are set out for the issue, including the importance of obtaining expert medical evidence. There is no longer any requirement to show that a mental illness is clinically well recognised. Mental impairments excluded by the Meaning of Disability Regulations include exhibitionism, voyeurism, or a tendency to set fires, steal or physically or sexually abuse other persons. In Power v Panasonic UK Ltd (2003), the EAT emphasised the distinction in the DDA between alcohol dependency and impairments which can arise from that condition, such as depression. The former is excluded from the definition, but the latter may not be.

Substantial Effect The government Guidance makes it clear that a substantial effect is more than a minor or trivial one. In Anwar v Tower Hamlets College (2010) the EAT held that, when assessing whether an impairment had a ‘substantial adverse effect’, an employment judge had been entitled to find that the effect in question was more than ‘trivial’ but still ‘minor’, and so not ‘substantial’. In ascertaining the degree of the effect, consideration should also be given to the time taken to undertake an activity, the manner in which it is undertaken, the cumulative effects of impairment, the effects of the environment, reasonable modifications to behaviour that could be expected to reduce the effects of impairment, and the effect of treatments. In Goodwin v The Patent Office (1999) and Leonard v Southern Derbyshire Chamber of Commerce (2002) the EAT emphasised that tribunals, in addressing this issue, should focus not on the things that the claimant can do but on the things he or she cannot do or can do only with difficulty. Schedule 1 to the DDA makes provision for an individual with progressive conditions. Where there is an effect on a person’s ability to carry out normal day-today activities, but this is not yet having a substantial adverse effect, the definition will be deemed to be satisfied. However, the individual will need to show that the condition is more likely than not to result in such impairment. According to the Northern Ireland case of SCA Packaging v Boyle (2009), which was decided by the House of Lords, ‘likely’ means ‘could well happen’. As discussed above, some progressive conditions will be deemed to be a disability on diagnosis.

Disability Discrimination

353

Individuals who have a severe disfigurement are not required to satisfy the various ingredients of the statutory definition of ‘disability’. Rather, Schedule 1 makes it clear that a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-today activities.

Long-term Effect According to Schedule 1 to the DDA, an impairment will be regarded as having a long-term effect only if it has lasted (or is likely to last) at least 12 months or for the rest of the person’s life. An impairment which no longer has a substantial adverse effect, but did so in the past and is likely to recur, is still to be treated as falling within the definition if the effects are likely to recur beyond 12 months of the first occurrence. This should cover people with recurring disabilities, such as epilepsy, and conditions that go into remission, such as rheumatoid arthritis. In assessing the likelihood of an impairment recurring, events taking place after the alleged discriminatory act should be ignored: Richmond Adult Community College v McDougall (2008).

Normal Day-to-day Activities Schedule 1 to the DDA indicates that impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one or more of the following: — — — — — — — —

mobility; manual dexterity; physical coordination; continence; ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; or perception of the risk of physical danger.

In Schedule 1 there is no mention of ‘work’. This leads to scenarios arising where individuals may be disabled in a lay person’s terms, and therefore liable to dismissal, but not disabled enough to fall within the definition of a disabled person for the purposes of the DDA. As a result, they would be without a remedy despite the fact that they cannot work because of the severity of their impairment. So, for example, individuals with back injuries, who may not be able to lift heavy weights, may not satisfy the definition of a disabled person and therefore are liable to dismissal and will have no redress if employers fail to make adjustments, such as transferring them to lighter duties.

354

George Kilpatrick

However, in the case of Chacón Navas v Eurest Colectividades SA (2007) the European Court of Justice focused on the effect of the impairment on an employee’s professional life. Following this, the EAT in Paterson v Commissioner of Police of the Metropolis (2007) held that ‘normal day-to-day activities’ must be interpreted as including activities relevant to professional life, such as examinations for the purpose of gaining promotion. What is a normal day-to-day activity must be given its ordinary everyday meaning without regard to whether it is normal to the particular individual bringing the claim. A person may fall within the definition of a disabled person if he or she is receiving medical treatment to correct or control an impairment or has a prosthesis in order to alleviate his or her condition and, but for such correction, the impairment would have a substantial adverse effect on the ability to undertake day-to-day activities (this does not apply to sight impairments that can be corrected by spectacles or contact lenses). In Kapadia v London Borough of Lambeth (2001) counselling sessions were found to amount to medical treatment for someone with a mental illness such as depression.

Past Disability Individuals who have had a disability in the past can complain of an act of discrimination if they believe that they have been discriminated against on the grounds of that past disability. This is irrespective of whether the DDA was in force at the time, but they will still need to show that the constituent factors of the definition of disability are met. Therefore, an individual who previously suffered from depression, but whose condition has dramatically improved, may still be able to initiate a discrimination complaint if he or she is refused employment because of their past history of depression.

Medical Evidence In Vicary v British Telecommunications Plc (1999) the EAT made it clear that it is for the tribunal and not medical experts to decide what a normal day-to-day activity is and whether the effect of a person’s impairment is substantial. However, medical evidence can be helpful in securing an assessment of a claimant’s ability to carry out normal day-to-day activities. Additionally, medical experts will be able to give a prognosis on the condition and supply an opinion on the effect of medication and the effectiveness of reasonable adjustments.

Discrimination in Employment The employment provisions in the DDA are contained in sections 3A–18. There is no longer an exemption for small employers. The Employment Code

Disability Discrimination

355

(see page 349 above) is admissible in evidence before an industrial tribunal and must be taken into account where relevant. ‘Employment’ includes those employed, or seeking employment, under a contract of service or apprenticeship and those contracted to personally do any work. Unpaid volunteers who are not contracted personally to do work are not included (see X v Mid Sussex Citizens Advice Bureau, 2013). Previously excluded employees, such as police officers, prison officers, firefighters, employees who work wholly and mainly outside Northern Ireland and employees who work on ships, aircraft or hovercraft are now covered by the DDA. The only ‘employees’ now excluded are members of the armed forces (s 64). An employer must not discriminate against a disabled person at any stage of employment, including at the recruitment stage. Section 16B confirms that employers’ advertisements which could reasonably be understood to indicate that an application may be determined to any extent by reference to a candidate not having a disability are unlawful. Changes introduced by the DDO mean that publishers of such advertisements may also face liability. Enforcement powers lie exclusively with the ECNI. Once the employment relationship has terminated, section 16A provides former employees with protection from detriment or harassment where this arises out of and is closely connected to the employment relationship. Under section 18C, an act done by a charity pursuant to charitable purposes connected with physical or mental capacity will not be unlawful.

Contract Workers Contract workers are also protected from discrimination by section 4B. Therefore, the end user of the individual services, as well as the recruitment agency placing them with the end user, may have obligations under the DDA not to discriminate against disabled employees, including the duty to comply with the reasonable adjustments obligation, and not to harass such workers.

Forms of Unlawful Employment Discrimination Part 2 of the DDA outlaws six separate forms of unlawful discrimination in employment type scenarios: — direct discrimination—ie less favourable treatment on the ground of the disabled person’s disability; — associative disability discrimination; — unjustifiable less favourable treatment for a reason relating to the disabled person’s disability (disability-related discrimination); — unjustified failure to make reasonable adjustments; — harassment; and — victimisation.

356

George Kilpatrick

Section 4 makes it clear that it is unlawful for an employer to discriminate against a disabled person in the following circumstances: — in the arrangements which are made for the recruitment and selection of employees; — in refusing employment; — in the terms and conditions of employment offered; — in opportunities for promotion, transfer, training or receiving any other benefit, service or facility; and — in dismissal from employment or any other detriment.

Direct Discrimination The definition of direct disability discrimination is similar to the direct discrimination concept found in other areas of equality law (s 3A(5) of the DDA). Direct disability discrimination occurs where an employer, on the ground of the disabled person’s disability, treats the disabled person less favourably than he or she treats or would treat a person not having that particular disability whose relevant circumstances, including his or her abilities, are the same as, or not materially different from, those of the disabled person. Such discrimination often occurs where an employer acts on the basis of stereotypical assumptions. There is no justification defence to this form of discrimination. In Aylott v Stockton-on-Tees BC (2011) the Court of Appeal of England and Wales confirmed that, when making comparisons, tribunals are entitled to exclude not only the disability from the hypothetical comparator’s relevant circumstances, but also, in some cases, certain effects of the disability, in this case behaviour and performance issues. The Employment Code acknowledges that employers are unlikely to avoid liability on the basis that they were unaware of the disability in question.

Associative Disability Discrimination The European Court of Justice held in Coleman v Attridge Law (2008) that the Framework Directive (see page 349) gives rights to non-disabled people, in limited circumstances, not to suffer direct disability discrimination. In that case the employee claimed to have been subjected to less favourable treatment when she sought to take time off work to care for her disabled son. When the case was referred back to the EAT it effectively inserted a new subsection 5A into section 3A of the DDA saying: ‘A person also directly discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person’. To win a case the person associated with a disabled person has to show that the less favourable treatment is because of the other person’s disability, not because of, for example, the caring arrangements.

Disability Discrimination

357

Furthermore, associative disability discrimination is restricted to direct disability discrimination and harassment; it does not apply in other areas, such as the duty to make reasonable adjustments.

Disability-related Discrimination Section 3A of the DDA sets out the definition of disability-related discrimination: An employer discriminates against the disabled person if— (a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment is justified.

For many years the leading case on this form of discrimination (which was unique to the DDA) was Clark v TDG Ltd t/a Novacold (1999). The Court of Appeal of England and Wales held that all the claimant had to show was that, for disability-related reasons, he or she suffered less favourable treatment compared with someone to whom those reasons did not apply. For example, if an employee complained that he had been dismissed for disability-related absence, making him unable to work, all he had to show, in order to demonstrate less favourable treatment, was that someone who was not absent at all and therefore able to work would not have been dismissed. The Court of Appeal rejected the argument that the comparison should be with someone who was also absent from work for the same length of time but for a reason other than disability. However, in Lewisham London Borough Council v Malcolm (2008) the House of Lords held that the appropriate comparator in a case of disability-related discrimination is a non-disabled person who is otherwise in the same circumstances as the disabled claimant. This had the effect that the barrier for showing less favourable treatment was raised to a height that was very difficult to clear. The negative effect of the Malcolm decision was addressed in Great Britain by the Equality Act 2010, but that legislation does not apply in Northern Ireland. As is well established in other areas of discrimination law, intention, purpose or motive is irrelevant in establishing whether unlawful discrimination has occurred. However, there must be a connection between the discriminatory treatment and the applicant’s disability. The question then arises as to whether or not the employer’s knowledge of the disability is crucial for the employee to establish that he or she has been less favourably treated for a reason relating to disability. In HJ Heinz & Co Ltd v Kenrick (2000) the EAT held that knowledge either of the disability or its material features is irrelevant. Hammersmith and Fulham London Borough Council v Farnsworth (2000) went still further, suggesting that knowledge was irrelevant even to the issue of justification.

358

George Kilpatrick

The Employer’s Defence of Justification Assuming that the claimant establishes less favourable treatment, the burden of proof then passes to the employer to justify the alleged unlawful discrimination. This occurs, according to section 3A(3) of the DDA, ‘if, but only if, the reason for it is both material to the circumstances of the particular case and substantial’. The Heinz case (see above) held that the threshold the employer needs to satisfy when raising the defence is ‘very low’: justification has to be held to exist if the reason for the treatment relates to the individual circumstances of the particular case and is substantial. However, in the decision of the Court of Appeal of England and Wales in Jones v Post Office (2001) it was suggested that the employer’s reason for the treatment must carry real weight, be of substance and reasonably strongly connected to the circumstances of the individual case. This part of the defence is important, because it means employers will not be able to rely upon stereotypes of disabled people. The Employment Code gives the example of a blind person not being shortlisted for a computer job because the employer thinks that blind people cannot use computers. Such a general assumption would not in itself be a material reason because it is not related to the particular circumstances of the disabled person in question. Disability-related discrimination cannot be justified where an employer who is under a duty to make reasonable adjustments fails, unjustifiably, to make an adjustment, unless the less favourable treatment would have been justified even if the reasonable adjustment duty had been complied with.

The Tribunal ’s Role The Court of Appeal in Jones (see above) indicated that tribunals, when considering an employer’s justification, are undertaking a similar task to that which occurs in unfair dismissal cases. This means, unfortunately, that if the criteria of materiality and substantiality are met the tribunal must respect the employer’s decision even if the tribunal itself would have reached a different conclusion. Tribunals cannot, for example, evaluate medical evidence, or conduct their own risk assessment in order to substitute their opinion for that of the employers.

The Employer’s Duty to make Reasonable Adjustments Disability discrimination also arises from an employer’s failure to make reasonable adjustments to prevent any provision, criterion or practice (PCP) applied by the employer or on his or her behalf, or any physical feature of the employer’s premises, from placing the disabled person at a substantial disadvantage in

Disability Discrimination

359

comparison to non-disabled people (ss 4A and 18B). The justification defence in relation to failure to make reasonable adjustments was repealed in 2004. The Employment Code states that: ‘The duty to make reasonable adjustments applies in recruitment and during all stages of employment, including dismissal. It may also apply after employment has ended’. The DDA has been amended to make it clear (in s 4G) that the duty extends to any PCP applied by or on behalf of the trustees or managers of an occupational pension scheme which places a disabled person at a substantial disadvantage in comparison with non-disabled employees. London Clubs Management Ltd v Hood (2001) held that payment of sick pay can be a reasonable adjustment. In British Gas Services Ltd v McCaull (2001) the EAT held that the test is objective, that is, did the employer take such steps as were reasonable in all the circumstances of the case to prevent the arrangements by them from placing the disabled person at a substantial disadvantage compared with those who are not disabled? The duty to make reasonable adjustments is restricted to those which are ‘job related’. So making adjustments in relation to personal needs, such as assistance in relation to toilet requirements, will not be covered (Kenny v Hampshire Constabulary, 1999).

Knowledge Section 4A(3)(b) says that ‘if the employer does not know and could not reasonably be expected to know’ of the person’s disability and the likelihood of a substantial disadvantage arising, the duty to make reasonable adjustments is not activated. It is therefore often in a disabled person’s interest to advise an employer of his or her disability and possible disadvantage because this puts the employer on notice to make reasonable adjustments. Ridout v TC Group (1998) confirms that if someone is not specific about their needs, an employer is unlikely to face censure for failing to make further inquiries and acting upon those. As pointed out in Hammersmith and Fulham London Borough Council v Farnsworth (2000), employers will be unable to deny knowledge of disability if their occupational health department, or someone acting on their behalf such as a doctor, acts as if they have such knowledge and the individual has consented to providing the information to the employer. However, if the information is given by the employee to a person independent of the employer who is providing services to employees, knowledge may not be imputed (para 5.16 of the Employment Code). In Gallop v Newport City Council (2013) two of the employer’s doctors concluded that the employee was not disabled for the purposes of the DDA. A tribunal rejected the employee’s reasonable adjustments claim, on the basis that the employer could not reasonably have been expected to know that he was in fact disabled. However, the Court of Appeal of England and Wales held that it was an error of law to allow an employer to deny knowledge by relying unquestioningly on occupational health advice. An employer cannot simply ‘rubber stamp’ an

360

George Kilpatrick

occupational health adviser’s opinion, but must make up his or her own mind as to whether an employee is disabled. The Employment Code recommends that employers should be positive in welcoming applications from disabled persons and asking about the disability or the effects of it. This could aid employers to comply with their duties to make reasonable adjustments. However, as the Code indicates further, employers should ask disability-related questions only if a disability is or may be relevant to an individual’s ability to perform the functions of a job.

PCPs These include provisions, criteria or practices which address recruitment; terms and conditions or arrangements on which employment, promotion, transfer, training or any other benefit is offered; and other PCPs which are job-related. Following Archibald v Fife Council (2004), an implied requirement of medical fitness to undertake a role could be regarded as a PCP triggering a reasonable adjustment, such as redeployment at a higher grade. In Kent County Council v Mingo (2000) a redeployment policy gave preference to redundant and potentially redundant employees above those who were unable to work due to capability reasons. This policy put Mr Mingo, who had been off work for disability-related reasons, at a substantial disadvantage and he was unsuccessful in seeking redeployment. It was held that such procedures should have been adjusted to give priority to disabled people. The only individuals who should take preference over those with disabilities are those returning to work from pregnancy, who are entitled to return to suitable vacancies under the terms of the Maternity and Parental Leave etc Regulations (NI) 1999. In Nottingham City Transport Ltd v Harvey (2013) the EAT held that the oneoff application of a flawed disciplinary process to a disabled employee did not amount to a ‘practice’ capable of triggering the reasonable adjustments duty. A ‘practice’ must have an element of repetition and apply to both the disabled person and their non-disabled comparators.

Physical Features of Premises The duty to make reasonable adjustments to prevent any physical feature of the employer’s premises, from placing the disabled person at a substantial disadvantage extends to anything on the premises arising from the design or construction of a building (or from any approach to, exit from, or access to such a building), fixtures, fittings, furnishings, furniture, equipment or materials in or on the premises, and any other physical element or quality of any land comprised in the premises (s 18D).

Disability Discrimination

361

Substantial Disadvantage The Employment Code permits hypothetical comparisons to be made when deciding if an employee has shown that he or she is being placed at a substantial disadvantage by the arrangements or physical features concerned. But, as confirmed in Fareham College Corporation v Walters (2009), it may not always be necessary to identify a non-disabled comparator. Like-for-like comparisons do not apply to this form of discrimination. In Arthur v Northern Ireland Housing Executive (2007) a dyslexic management trainee was given more time in a test as a reasonable adjustment. He failed to score highly enough to be interviewed and argued a breach of the reasonable adjustments duty, as the employer failed to comply with its own code of practice on the employment of people with disabilities. The Court of Appeal held that the adjustment of extra time had removed any substantial disadvantage.

What are Reasonable Steps ? Section 18B(2) of the DDA and the Employment Code set out examples of steps that an employer might take in order to make reasonable adjustments. These include: — — — — — — — — — — — —

making adjustments to premises; allocating some of a disabled person’s duties to another person; transferring the disabled person to fill an existing vacancy; altering a disabled person’s hours; assigning a disabled person to another workplace; allowing absences during working hours for treatment, rehabilitation or assessment; giving or arranging appropriate training; purchasing or modifying equipment; modifying instructions or reference manuals; changing procedures for testing or assessments; providing a reader or an interpreter; or providing supervision.

The case of Archibald v Fife Council (2004) saw the House of Lords confirming that transferring a disabled employee to a slightly higher grade, without a competitive interview, could be a reasonable adjustment. In Southampton City College v Randall (2006) the creation of a new post (during a reorganisation) was accepted as being a reasonable adjustment. However, in Tarbuck v Sainsbury’s Supermarkets Ltd (2006) the EAT held that there is no separate and distinct duty on an employer to consult with a disabled worker on reasonable adjustments.

362

George Kilpatrick

When deciding whether it was reasonable for an employer to take a particular step, section 18B(1) requires a tribunal to take various matters into consideration, including: — — — — — — —

the effectiveness of the step in preventing the disadvantage; the practicability of the step; the financial and other costs in taking action; the extent of disruption; the employer’s financial and other resources; the availability of financial or other assistance to assist in taking action; and the nature of activities and the size of the undertaking.

Other factors may also be applicable. In Salford NHS Primary Care Trust v Smith (2011) the EAT held that rehabilitative ‘light duties’ and career breaks were not reasonable adjustments for an employee unable to work because of chronic fatigue syndrome, as reasonable adjustments are primarily concerned with enabling the disabled person to remain in or return to work with the employer. The test is an objective one and, unlike in some other contexts, the tribunal’s view of what is reasonable is the one that counts. Government assistance in relation to funding reasonable adjustments might be available for the purchase of special equipment or the protection of salary. This is through the Access to Work Scheme, which is administered by the Department for Employment and Learning.

Harassment Section 3B(1) of the DDA states that: a person subjects a disabled person to harassment where, for a reason which relates to the disabled person’s disability, he (sic) engages in unwanted conduct which has the purpose or effect of (a) violating the person’s dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

Section 3B(2) provides that conduct will be regarded as having such an effect only if, ‘having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect’.

Victimisation Those who have taken ‘protected acts’ under the DDA and who are victimised, that is, suffer less favourable treatment than others in similar circumstances as

Disability Discrimination

363

a result, have further grounds for complaint under section 55 of the DDA. The ‘protected acts’ (where ‘A’ is the alleged victim) are as follows: — A has brought proceedings against B or any other person (C) under the Act; — A has given evidence or information in connection with the proceedings brought by another person (D) against B or C under the Act; — A has otherwise done anything under the Act in relation to B or any other person (C); or — B believes or suspects that A has done or intends to any of the above things. Additionally, it is essential that any allegation made by A is made in good faith and is not false. The question whether or not A is actually disabled is generally irrelevant for the purposes of victimisation proceedings.

Instructions and Pressure to Discriminate Under section 16C of the DDA it is unlawful for a person who has authority or influence over another to instruct or put pressure on him or her to act unlawfully in contravention of the provisions on employment in Part 2 of the DDA and those on employment services in Part 3. The ECNI has responsibility for enforcing this provision.

Employment-related Discrimination in Partnerships etc Organisations such as partnerships, trade unions and qualifying bodies (or those dealing with work placements) are very likely to be employers or service providers, so the matters discussed above and below are likely to apply to them. In addition, they have additional responsibilities under Part 2 of the DDA. Generally speaking, partners (and proposed partners) have the same protections as employees. Partners are regarded as those who are self-employed in a business and sharing the profits with others, not ‘salaried’ partners, who will be able to rely upon the employment provisions. In Loughran and Kelly v Northern Ireland Housing Executive (1998), a fair employment case, the House of Lords held that a partner in a firm could be a worker for the purposes of anti-discrimination legislation, and thus entitled to protection from discrimination by the client to which the firm supplies services. Organisations such as trade unions, organisations of workers or employers, professional organisations and so on, are known as ‘trade organisations’ and are employers. Under section 13 of the DDA, members, former members and

364

George Kilpatrick

applicants for membership have the same protection from less favourable treatment as employees would have. Qualifying bodies, that is, bodies which can confer authorisations that are required for those wishing to work in a particular trade or profession, are covered by section 14A of the DDA. Such bodies must not discriminate, for example, in the arrangements they make for determining upon whom to confer a professional or trade qualification. Vocational training and education are not covered by this section (but see this chapter’s discussion of the provision of goods, facilities and services, below). However, the reasonable adjustments duty does not apply to competence standards applied by a qualifying body. Disability discrimination in the field of practical work experience undertaken for a limited period for the purposes of vocational training is also prohibited under sections 14C and 14D of the DDA. The placement provider must not discriminate, for instance, in the arrangements made for the purposes of selection for training placements. The reasonable adjustments duty also applies to work placement providers.

Enforcement of Rights in the Employment Context The enforcement procedures for employment-related disability discrimination are set out in section 17A of the DDA. Individual complaints against employers can be taken to an industrial tribunal. The application must be presented within three months of the act of discrimination, although the tribunal has discretion to hear a claim out of time if it considers it ‘just and equitable’ to do so. There may be more room for arguing that this discretion should be applied in disability cases because someone’s disability may have prevented him or her from being able to access legal advice or to submit the complaint. Section 56 provides for the use of a statutory questionnaire to secure additional information from the respondent employer. As with other discrimination claims, restricted reporting orders to limit publicity are available on application to the tribunal. Schedule 3A to the DDA makes void any contract, term or agreement which limits or excludes the operation of the DDA or prevents any person from presenting a complaint to an industrial tribunal. There is the usual exception which allows the settling of complaints through the Labour Relations Agency or the compromise agreement process. The remedies available at a tribunal are detailed in section 17A(2)(c) of the DDA. They are: — a declaration; — compensation, including damages for injury to feelings and interest; and — recommendations requiring ‘reasonable’ action (as opposed to practicable actions as found in other equality legislation) to reduce the adverse effect on

Disability Discrimination

365

the claimant of any matter; these may include recommendations for reasonable adjustments. Prior to bringing a claim for disability discrimination in a tribunal, it is important that the Labour Relations Agency’s Code of Practice on disciplinary and grievance procedures is complied with. Failure to do so could result in a 10% to 50% alteration in the compensation ordered by the tribunal. See also Chapter 23.

Discrimination in Relation to Goods, Facilities, Services and Premises A service provider may also be an employer and thus will be bound by the employment provisions discussed above. A service provider’s additional responsibilities are laid out in Part 3 of the DDA (ss 19–21). The Part 3 Code (as with all the statutory codes of practice under the DDA) emphasises how important it is to train staff on disability issues, particularly in relation to reasonable adjustments. There is no definition of what amounts to ‘goods, facilities or services’, but examples are enshrined in section 19(3) and include: — — — — — — —

access to places where the public can enter; access to, and use of, means of communication; hotel accommodation; banking and insurance facilities; entertainment facilities; employment agency facilities; and professional and trade services.

Part 3 always applied to transport infrastructure public services such as waiting rooms and timetables. This remains the case. The provisions on use of a means of transport are described below (see page 373). It is unlawful for a service provider to treat disabled people less favourably for a disability-related reason: — by refusing to provide any service which it offers to members of the public; — in the standard or manner of the services which it provides; or — in the terms on which it provides a service. It is also unlawful for a service provider to fail to comply with the duty to make reasonable adjustments, if that failure has the effect of making it impossible or unreasonably difficult for a disabled person to make use of any service provided. In 2004 further duties to remove, alter or avoid physical barriers were introduced. A duty to make reasonable adjustments through auxiliary aids applies also.

366

George Kilpatrick

The Part 3 Code gives practical advice as to how to comply with the responsibilities under the legislation. It may be used in evidence and a court must take it into consideration where relevant.

Who is a Service Provider? Under section 19(2) a service provider is a person concerned with the provision, in the UK, of services to the public or a section of the public, regardless of whether payment is made for the services. This is a wide definition and will apply across the private, public and voluntary sectors. Education services have their own provisions (see page 375 below), but where an education provider provides services to the public such as a Christmas fête, or a play, they will be covered by Part 3 of the DDA. Manufacturers and designers, unless they supply goods or services directly to members of the public, are excluded. Private members’ clubs are also now usually covered, as are services provided under statutory authority.

Less Favourable Treatment Section 20(1) states that a provider of services discriminates against a disabled person if: (a) for a reason which relates to the disabled person’s disability, he (sic) treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified.

As this is the same definition as for disability-related discrimination discussed above in the employment section of this chapter, the same principles apply to the Part 3 definition when addressing the less favourable treatment part of the test. However, the justification test is narrower than that contained in the employment provisions. Victimisation is also addressed, but harassment is not and so reliance on the definition in section 20 will be required to advance such a case.

The Service Provider’s Duty to make Reasonable Adjustments While the duty to make reasonable adjustments within the employment provisions is owed to individual employees, the duty on service providers is owed to disabled people at large (para 4.15 of the Part 3 Code). Service providers have an on-going anticipatory and evolving duty to consider the accessibility of their services for disabled people generally. So knowledge of an individual’s disability is irrelevant in deciding whether the duty applies. When enforcing rights as a result of a service provider’s failure to make reasonable adjustments, the disabled

Disability Discrimination

367

person must show that the duty was triggered, that is, broadly speaking, that it was impossible or unreasonably difficult for disabled people generally (not just the claimant) to access the service in question. The claimant must then show that it was unreasonably difficult or impossible for him or her to access the service in question prior to the burden shifting to the service provider to justify the failure on the basis of one of the five fair reasons in section 20 (see page 368 below). Under section 21 a service provider may have to take reasonable steps to: — change practices, policies or procedures which make it impossible or unreasonably difficult for disabled people to make use of services; — overcome a physical feature which makes it impossible or unreasonably difficult for disabled people to make use of services; and — provide an auxiliary aid or service if this would make it easier for disabled people to make use of services. The Disability Discrimination (Service Providers and Public Authorities Carrying Out Functions) Regulations (NI) 2007 highlight things that are physical features which are subject to the reasonable adjustment duty. The Part 3 Code, in paragraph 5.38, suggests that the ‘recognised good practice’ is to consider removal or alterations first.

When is the Reasonable Adjustment Duty Triggered ? The duties highlighted above are triggered at different times. In regard to practices, policies, procedures and physical features, the trigger occurs when it is impossible or unreasonably difficult for disabled people to make use of the services. The Code of Practice gives guidance as to what factors may be taken into account in determining when something is ‘unreasonably difficult’. Changes to practices, policies and procedures and so on might include, for instance, removal of a ‘no dogs policy’ in order to permit guide or hearing dogs on premises. The duty to provide auxiliary aids or services is triggered when the aid or service would help disabled people. This might include provision of information on tape for the visually impaired, or provision of a sign language interpreter.

What are Reasonable Steps ? Unlike with the employment provisions, there are no specific examples of reasonable steps given in this part of the DDA. Nor is there any definition of what reasonable steps are. But the Code of Practice lists some factors that might be taken into account, including: — the effectiveness of any particular step in overcoming the difficulties; — the extent to which it is practicable for the service provider to take the step;

368

George Kilpatrick

— — — — —

the financial and other costs of making the adjustment; the extent of any disruption caused by taking steps; the extent of the service provider’s financial and other resources; the amount of any resources already spent on making adjustments; and the availability of financial or other assistance.

Section 20(5) of the DDA does not allow a service provider to pass on the additional costs of complying with the duty to make reasonable adjustments to disabled customers alone. Adjustments are not required to be made, however, where there would be a fundamental alteration in the nature of the service or business provided (s 21(6)).

The Defence of Justification There are five potential grounds of justification (for both disability-related discrimination and breaches of the reasonable adjustments duty), depending on the nature of the discrimination. Additionally, the test contains both a subjective and objective element, as confirmed in Rose v Bouchet (1999). The service provider must show that, at the time of the alleged act of discrimination, he or she was of the opinion that one of the five reasons listed below was satisfied. Once that hurdle is cleared, it is then for the service provider to show that it was reasonable in all circumstances of the case to hold that opinion. The list of justifications is contained in section 20: — the treatment is necessary in order not to endanger the health or safety of any person (although trivial risks can be ignored); — the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent (although this condition does not apply where another person is acting for a disabled person under, for instance, an enduring power of attorney); — in a case falling within section 19(1)(a) (refusal of a service), the treatment is necessary because the provider of the services would otherwise be unable to provide the services to members of the public; — in a case falling within section 19(1)(c) or (d) (standard of service or terms of service), the treatment is necessary in order for the provider of services to be able to provide the service to the disabled person or to other members of the public; and — in a case falling within section 19(1)(d) (terms of service), the difference in the terms on which the service is provided to the disabled person and those on which it is provided to other members of the public reflects the greater cost to the provider of services in providing the service to the disabled person (but justification on this ground cannot apply where the extra cost results from the provision of a reasonable adjustment).

Disability Discrimination

369

Paragraph 7.8 of the Part 3 Code indicates that the service provider should take into account all the circumstances, including the information available and the opinion of the disabled person. In White v Clitheroe Grammar School (2002) a school refused to allow a diabetic pupil to attend a school water sports trip on health and safety grounds on the basis of a teacher’s opinion that the pupil failed to manage his disability properly. The failure to consult the pupil, his parents and his doctors resulted in the justification defence failing. In such circumstances, the opinion held could not be a reasonable one even though it was genuinely held. The provisions in section 20 do not require service providers to consider reasonable adjustments prior to seeking to justify less favourable treatment, as is required in the employment provisions of the DDA, but the Part 3 Code encourages such an approach.

Insurance, Guarantees and Deposits Special rules apply in these areas, as set out in the Disability Discrimination (Service Providers and Public Authorities Carrying Out Functions) Regulations (NI) 2007. Where such a service provider, for a disability-related reason, treats a disabled person less favourably than he or she treats (or would treat) someone to whom that reason does not (or would not) apply, this will be unlawful unless the treatment can be justified. The special justifications in such situations are highlighted below. Regulation 4 deals with insurance services. If the less favourable treatment is based on current information such as actuarial, medical or statistical data relevant to the assessment of risk to be insured and is from a source upon which it is reasonable to rely and the treatment is reasonable, the justification hurdle will be cleared. Guarantees (which are defined to include any document where a service provider provides for a replacement, repair or refund if the goods or services are not of a satisfactory quality) are addressed by regulation 7. If a service provider refuses to provide a replacement because of damage related to the disabled person’s disability, he or she must be in a position to show that the refusal is reasonable in all the circumstances of the case and that it is because the damage is above a level which the guarantee would normally honour. If a service provider refuses to refund some or all of the deposit for returned goods which have been damaged for a reason relating to the disabled person’s disability, such action will be justified (pursuant to regulation 8) only if it is reasonable in all the circumstances of the case for the service provider to refuse to repay the deposit in full. Under section 19(1)(d), service providers cannot justify charging disabled customers higher deposits than non-disabled customers.

370

George Kilpatrick

Property and Premises Those individuals with power to dispose of or manage any premises have obligations under the DDA not to treat a disabled person less favourably for a reason relating to the disabled person’s disability (s 24). Reasonable adjustment duties apply to landlords and those managing rented premises as service providers. Further, they must not victimise disabled tenants. The provisions do not apply to residential property falling within the small premises exemption (s 23). This applies to a person who takes up to six lodgers into his or her home. Additionally, the exemption will apply if all the following criteria are met: — the person with the power of disposal, and members of that person’s household, reside in the accommodation and intend to continue residing there; — there is residential accommodation for at least one other household in the property; — the accommodation for the other household is let (or is available for letting) on a separate tenancy or similar agreement; — there are not normally more than two households in the property; and — the shared accommodation must not be storage accommodation or a means of access. Private sales of houses are also exempt if the owner or occupier does not sell the house through an estate agent or advertise the property in any way (s 22). There are also six forms of discrimination set out in section 22 which may apply to those with the power to dispose of or manage premises. These include discriminating in the terms on which they offer to dispose of the premises to a disabled person, or subjecting the disabled person to any detriment. The DDO introduced a reasonable adjustments duty for landlords or managers of rented premises or premises available for rent. The reasonable adjustments that may need to be made are set out in sections 24C and 24D of the DDA and include: — altering their policies, practices or procedures; — providing auxiliary aids or services; or — changing the terms of a letting (but only in respect of premises that have already been let). In determining reasonableness, similar factors to those discussed in relation to goods, facilities and services apply. A landlord or manager does not have to take any steps that would involve the removal or alteration of a physical feature (s 24E), but there are exceptions for actions such as changing taps or door handles (see reg 4(4) of the Disability Discrimination (Premises) Regulations (NI) 2007). The reasonable adjustments duty applies only when an individual disabled person requests the adjustment. Further, the duty will not apply to premises which are or have been the principal

Disability Discrimination

371

or only home of the individual who lets or wishes to let them, unless a professional manager is used to manage the premises or an estate agent has been used to let them. Auxiliary aids or services are required, upon request, only where they would make it easier for a disabled person to enjoy the premises or facilities and it would be impossible or unreasonably difficult for him or her to enjoy the premises or facilities if they were not provided. If it is impossible or unreasonably difficult for the disabled person to enjoy the premises or make use of a benefit or facility, this will trigger the need to alter policies, practices or procedures. Pursuant to section 24(3), the person with power of disposal or management of premises may be able to justify less favourable treatment or failure to make reasonable adjustments if two hurdles are cleared. First, at the time of the alleged act of discrimination, the person believed that one of the listed conditions applied (they are comparable to those set out at page 368 above) and second, it was reasonable in all the circumstances of the case to hold that belief. Where there are common parts of a building, such as lifts and stairs, a landlord may be covered by the Part 3 provisions discussed above. And, as well as the general protections discussed above in relation to victimisation, a tenant (disabled or not) must not be victimised by a landlord because of the costs incurred in complying with the reasonable adjustments duty (s 24F).

Leases, Building Regulations and Reasonable Adjustments Where an employer, trade organisation, service provider, or higher education provider occupies premises under a lease, there may be restrictions imposed upon them in the lease in relation to making physical alterations. Where the proposed alteration is to comply with the reasonable adjustments duty, sections 16 (in Part 2) and 27 (in Part 3) of the DDA provide that the lease is deemed to give the right to the tenant to make such alterations with the written consent of the landlord, and such consent must not be unreasonably withheld. Without seeking such consent the tenant will be unable to rely upon a failure to comply with the reasonable adjustments duty. The Building Regulations (NI) 2012 require plans of buildings to make reasonable provision for disabled people to gain access to and use buildings for which plans have been deposited with the district council and to which Part R of the Regulations applies. Further details of these complex issues can be found in Chapter 3 of the Part 3 Code (see page 349), which explains that a service provider or employer will not normally have to make physical adjustments to a building if less than 10 years have passed since

372

George Kilpatrick

the construction or installation of new buildings (eg ground floor extensions). However, other reasonable adjustments, as discussed above, may be required. Statutory consents (such as planning permission) may still have to be obtained by employers and service providers, but again further guidance in relation to such issues can be found in the various codes of practice. In terms of mortgages or other normally binding obligations requiring consent (except leases), the Disability Discrimination (Service Providers and Public Authorities Carrying Out Functions) Regulations (NI) 2007 state that it is reasonable for service providers to have to request that consent and it is not reasonable for the service provider to have to make an alteration before obtaining it.

Public Authority Duties Public authorities are employers and often service providers and, as such, are covered by the responsibilities detailed earlier in this chapter. Section 21B prohibits public authorities from discriminating against disabled people when carrying out their ‘functions’. ‘Functions’ is defined widely, but will not apply, in broad terms, to the areas of prosecution, judicial acts and state security. Where public authority responsibility is covered by other provisions under the DDA or legislation on special educational needs, those provisions apply rather than section 21B. Unjustified less favourable treatment for disability-related reasons is prohibited by section 21D and a breach of the reasonable adjustments duty is unlawful. This duty (subject to a justification defence) is similar to that found in Part 3 and is triggered, for example, where a practice makes it unreasonably difficult for disabled people generally (not just the claimant) to receive any benefit that may be conferred by the carrying out of the function of the authority. As with the Part 3 duty, it is an anticipatory one. The justification defence set out in section 21D confirms that treatment will be justified if in the opinion of the authority one of four conditions applies and it is reasonable in all the circumstances of the case to hold that opinion. The first two of these are similar to the first two in Part 3 (see page 368). The second two are (a) that in a case of less favourable treatment treating the disabled person equally favourably would in the particular case involve substantial extra costs that would be too great and (b) that the treatment or non-compliance with the reasonable adjustments duty is necessary for the protection of the rights and freedoms of other persons. Under section 21D(5), moreover, the treatment or non-compliance can be justified if the acts of the authority are a proportionate means of achieving a legitimate aim. Sections 15A–15C make it unlawful for district councils to discriminate against councillors (including subjecting them to detriment and harassment).

Disability Discrimination

373

Appointments to offices or committees are excluded. Broadly speaking, these provisions follow the employment provisions in Part 2. Section 49A introduces the ‘disability equality duty’, which requires public authorities to have due regard, in carrying out their functions, to the need to promote positive attitudes towards disabled people and to encourage participation by disabled people in public life. Action plans need to be submitted to the ECNI indicating how the authorities propose to meet those obligations. Pursuant to section 75 of the Northern Ireland Act 1998, public authorities must also have due regard to the promotion of equality of opportunity between persons with a disability and those without. The ECNI has provided guidance on both the section 49A and section 75 duties. They are subject to a separate enforcement procedure (see also Chapter 12).

Transport The Disability Discrimination (Transport Vehicles) Regulations (NI) 2009 (the 2009 Regulations) flesh out this area of disability discrimination.The only exemption now applicable relates to the provision or use of the vehicle itself (s 21ZA). The 2009 Regulations cover the following types of vehicle: — — — — — —

buses and coaches taxis trains vehicles used on modes of guided transport rental vehicles, and breakdown recovery vehicles.

Aircraft and shipping are not covered, but airlines and ferry companies still have to comply with the Part 3 duties discussed above in relation to matters ancillary to the mode of transport, such as booking facilities and waiting rooms. Further, as referred to in paragraph 3.1 of the Transport Code, EU Regulations require airport operators to organise the provision of services in a way which enables disabled or reduced-mobility passengers to board, disembark and transit between flights. Airlines are also required to provide certain assistance on board the aircraft. A transport provider must not discriminate against a disabled person when providing (or not) a disabled person with a vehicle, or when providing (or not) a disabled person with services when he or she is travelling in a vehicle provided in the course of a transport service. The law relating to disability-related discrimination is similar to that in Part 3 of the DDA. A transport provider also has a duty to make certain kinds of reasonable adjustments for disabled people. The duty is similar in relation to changing

374

George Kilpatrick

practices, policies and procedures and also the provision of auxiliary aids or services (although the duty to overcome physical features does not apply to most vehicles). The Part 3 reasonable adjustments duty applies in full to rental cars (reg 6). Pursuant to regulation 8, physical features in a rental vehicle will include any part of the vehicle that requires alteration in order to make provision for hand controls to enable a disabled person to operate braking and accelerator systems and for facilities for stowing a wheelchair. The duty in relation to breakdown recovery vehicles extends only to providing a reasonable alternative method of making the service available (reg 5).

Rail Vehicles Sections 46 and 47 of the DDA deal with rail vehicles. The Rail Accessibility Regulations (NI) 2001 applied to passenger-carrying vehicles using railways that were first brought into use after January 1999. The principal feature of the regulations was to seek to secure that it was possible for disabled persons to get on and off trains safely and without unreasonable difficulty and to be carried in safety and reasonable comfort. To implement EU Directive 2008/164/EC on standards of rail accessibility, the Rail Vehicle Accessibility (Interoperable Rail System) Regulations 2008 were introduced, largely superseding the 2001 Regulations. As with public service vehicles (PSVs) (see below), an operating company commits a criminal offence punishable on conviction by a fine if it does not comply with the regulations. The 2006 DDO requires the Department for Regional Development to set an end date of no later than 2020 by which all rail vehicles will have to comply with the DDA’s rail access standards.

Public Service Vehicles PSVs are vehicles in public service which are adapted to carry more than eight passengers in addition to the driver. They therefore include buses and coaches offering a public service. Under sections 40–45 of the DDA the Department of the Environment has the power to make regulations governing access to such vehicles in order to ensure that disabled people can get on and off them safely and travel in safety and reasonable comfort. As with the regulations relating to taxis (see below), breach of the regulations will amount to a criminal offence punishable by a fine. Under the Public Service Vehicles Accessibility Regulations (NI) 2003, new buses and coaches gradually have to comply with various requirements by 2022.

Taxis Legislation regulating taxi accessibility standards is still awaited. When it is introduced it will aim to ensure that disabled people can get into and out of, and travel in,

Disability Discrimination

375

licensed taxis in safety and reasonable comfort. The grant of taxi licences will, eventually, be subject to compliance with such regulations. The regulations will apply only to taxis which are licensed to stand or ply for hire under the Road Traffic (NI) Order 1981 and which seat no more than eight passengers in addition to the driver. Additional responsibilities which will arise under section 36 of the DDA when regulations are introduced include: — carrying a wheelchair user in his or her chair without additional charges; — carrying the wheelchair in the taxi if the disabled person chooses to sit in a passenger seat; — taking such necessary steps to ensure that the passenger is carried in safety and reasonable comfort; and — providing reasonable assistance to disabled passengers in getting into and out of taxis and in loading and unloading luggage (including a wheelchair if need be). Section 37 of the DDA already requires the drivers of taxis to carry guide dogs free of charge. Failure to comply is a criminal offence punishable by a fine, but taxi drivers who cannot comply on medical grounds can apply to the Department of the Environment to be exempted.

Enforcement and Remedies in Part 3 Cases If a disabled person feels that he or she has been discriminated against regarding access to services (including transport), in the disposal of premises, or by a public authority, civil proceedings need to be initiated in the county court. As in industrial tribunals, a county court can issue a declaration and award compensation, including a sum for injury to feelings. There is no power to make recommendations, but the court can order additional remedies that are available in the High Court, including injunctions. Proceedings must be lodged in the county court within six months of the alleged act of discrimination. The downside of county court proceedings is the possibility that an order for costs might be made against the unsuccessful party. There are provisions within the DDA for the establishment of a conciliation service to deal with cases on goods, facilities and services by the ECNI. The time limit for commencing proceedings is extended by two months when a person is referred to conciliation services.

Primary and Secondary Education The DDA also deals with education, but the relevant provisions did not apply in Northern Ireland until 2005, when the Special Educational Needs and Disability

376

George Kilpatrick

(NI) Order 2005 (SENDO) came into effect. SENDO strengthens the rights of children with special educational needs to be educated in mainstream education. Special educational needs (SEN) were addressed by a pre-existing legislative framework independent of the DDA, and this chapter does not address it. Further information about it is available from the Department of Education’s Code of Practice on the Identification and Assessment of Special Educational Needs (1998) and the Supplement to the Code (2005). See too Chapter 22. SENDO also protects disabled people from being discriminated against by schools and institutions of further and higher education (FHE) when they are seeking access to education. People who had disabilities in the past are also covered (art 48). It is unlawful for a ‘responsible body’ (see below) to discriminate against or harass disabled persons who are former students of a further or higher education college. This covers activities such as the provision of references (art 30A). SENDO makes it unlawful in the FHE sectors for a responsible body to instruct or induce another person to commit an act of disability discrimination (art 30B), and it is also unlawful for a responsible body to publish a discriminatory advertisement (art 30C). The ECNI has the power to enforce these provisions. Article 43 addresses protection against victimisation in this context.

Schools Articles 13–26 of SENDO cover schools. The legislation places responsibilities on all schools and on other ‘responsible bodies’ (see below). It outlaws disabilityrelated discrimination, a failure to make reasonable adjustments when the duty is triggered, and victimisation. Harassment is not expressly addressed. Schools must not discriminate against disabled children in their admissions arrangements, in education and associated services or in their exclusion policies. But SENDO does not affect the way an assessment of a pupil’s needs is carried out or how a statement of SEN is made. Article 14(5) provides that the ‘responsible body’ for a school is (a) in the case of a grant-aided school, the education and library board (ELB) for the area in which the school is situated or the Board of Governors; and (b) in relation to an independent school, the proprietor of the school. In Northern Ireland most schools are grant-aided, including special schools and mainstream schools.

Disability-related Discrimination Disability-related discrimination has, by article 15, the same definition as in the employment provisions of the DDA and a similar justification defence operates. A failure to comply with the reasonable adjustments duty will prevent the responsible body from justifying any less favourable treatment unless it would have been justified even had the responsible body complied with the reasonable adjustments

Disability Discrimination

377

duty. One significant difference from the employment provisions is that such less favourable treatment cannot occur if the responsible body did not know, or could not reasonably be expected to know, that the pupil was disabled. Justification is also permitted if the discrimination is a result of a permitted form of admission criteria drawn up by the school’s Board of Governors under article 16(1) of the Education (NI) Order 1997 or article 32(1) of the Education (NI) Order 1998, or, in relation to independent schools, any arrangements that allow the school to select pupils who have a general or special ability or aptitude.

Reasonable Adjustments In terms of reasonable adjustments (art 16), the duty mirrors the employment provisions, save that the duty is owed to disabled pupils at large and is an ‘anticipatory’ one. One difference is that failure to make a reasonable adjustment is subject to a justification defence similar to that used in the justification of disability-related discrimination in the employment context. However, the duty will not be triggered if the responsible body did not know, and could not reasonably have been expected to know, that the pupil was disabled. The reasonable adjustment duty does not require responsible bodies to provide auxiliary aids and services or to make alterations to the physical features of schools, although in relation to the latter article 18 imposes various other duties so that ELBs need to have a written, regularly reviewed strategy for their schools which addresses the physical accessibility of premises, accessibility of the curriculum, and provision of information in alternative formats. Grant-aided schools should include the information about the accessibility plan in the Board of Governors’ annual report; private schools must also make the report available for inspection. Further guidance on reasonable adjustments is given in paragraph 32 of the Schools Code. In England the reasonable adjustments duty has been given a purposive interpretation and so may include the provision, at break time, of pastoral support to a pupil with autism, as in McAuley Catholic High School v CC (2001), where the suggestion that such support was an ‘auxiliary aid’ was rejected. Under article 16(7) of SENDO a confidentiality request can be made. This asks for the nature of a disabled person’s disability to be treated as confidential and is made by the person’s parent or by the person him- or herself. The request could impact on the reasonable adjustments duty as it may not always be possible to preserve confidentiality when making the adjustment.

Residual Duties Articles 19 and 20 make it unlawful for ELBs to discriminate against a disabled pupil or prospective pupil in the discharge of their functions. This residual duty is intended to cover the general education-related functions and aims to ensure that

378

George Kilpatrick

disabled pupils are treated no less favourably and that there is compliance with reasonable adjustments duties.

Enforcement Under SENDO, the ECNI has the power to set up an independent conciliation service to promote the settlement of disputes in relation to disability discrimination, but there is no obligation to enter into this conciliation process. The Special Educational Needs and Disability Tribunal (SENDIST) hears complaints of unlawful disability discrimination in schools, including issues of suspension. The tribunal cannot award financial compensation, but can order any other remedy which it feels is appropriate. A claim of unlawful disability discrimination must be made to the SENDIST within six months of the date of the alleged discrimination. This time limit is extended by two months if the dispute is first referred to the ECNI-facilitated conciliation process. The Education and Library Board Expulsion Appeals Tribunal deals with disability discrimination claims relating to permanent exclusions. The time limit for an appeal is 10 days from notification of the pupil’s expulsion. See too Chapter 22.

Further and Higher Education Article 27 of SENDO places responsibilities on further and higher education (FHE) institutions not to discriminate against disabled people. The legal responsibility lies with the ‘responsible bodies’, for example, the governing body of a university or an institution of further education. SENDO deals specifically with education in the FHE sector as well as training and related services. Private providers of education and work-based training providers are not covered by SENDO, but by Part 3 of the DDA. The FHE Code (see page 349) gives examples clarifying whether an institution is covered by SENDO or the DDA. Educational institutions often offer facilities which are wholly or mainly for other groups of non-students. These are not covered by SENDO but are likely to be covered by Part 3 of the DDA. Pursuant to article 28 of SENDO, it is unlawful for a responsible body to discriminate against a disabled person in the arrangements it makes for determining admissions to the institution, in the terms on which it offers to admit a person, and in refusing to accept an application for admission or enrolment. A responsible body must not discriminate against disabled persons in relation to the conferring of qualifications. The duty to make reasonable adjustments also applies to the conferring of qualifications and the treatment of qualification-holders. It is also unlawful to discriminate against a disabled student in the student services offered, such as classes and field trips.

Disability Discrimination

379

Articles 29, 30 and 30A of SENDO define unlawful discrimination in the same terms as in the employment provisions of Part 2 of the DDA. Disability-related discrimination has the same definition as in the schools provisions. The justification defence is slightly different as it includes, in addition to the substantial and material test, a separate defence where a competence standard is applied to everyone, irrespective of a disability, and the application of the standard is a proportionate means of achieving a legitimate aim. Further, the ‘lack of knowledge’ defence, which is applicable in the schools sector in relation to less favourable treatment for disability-related reasons, is not available in the FHE sector. However, in failing to take a particular step, a responsible body does not discriminate against a person if it shows that, at the time in question, it did not know and could not reasonably have been expected to know, that he or she was disabled and this was the reason for the omission. Subject to the knowledge factor above, FHE institutions are under a duty to make reasonable adjustments where a provision, criterion or practice or any physical feature of the premises, other than a competence standard, applied by or on behalf of a responsible body, places disabled persons at a substantial disadvantage in comparison with persons who are not disabled (art 30). Similar confidentiality protection issues are included in article 30 as apply in the schools sector, as discussed above. There is no justification defence in relation to this duty in the FHE arena, but there will be no breach of it where it relates to a competence standard. Victimisation (art 43 of SENDO) and harassment (art 29A) have similar definitions to those discussed above in the employment section of this chapter. Prospective and former students, as well as current students, are covered by the harassment provisions.

Enforcement The FHE Code refers to using internal procedures of a responsible body either before or after legal proceedings, but the time limit for commencing legal proceedings is not affected by such an approach. Under SENDO, the ECNI has the power to set up an independent conciliation service to promote the settlement of disputes in relation to disability discrimination in the FHE sector, but again there is no obligation to enter into this conciliation process. If successful in his or her claim, a disabled person can be awarded compensation for any financial loss and/or injury to feelings. The disabled person may also seek an injunction to prevent the responsible body repeating any discriminatory act in the future, or an order to require positive action. Proceedings must be lodged within six months of the alleged act of discrimination, although if the ECNI’s conciliation process has been used with the agreement of both parties, time is again extended by two months.

380

George Kilpatrick

General Qualifications Bodies (GQBs) As with other bodies, GQBs may be employers and service providers and thus the provisions discussed above on those sectors may well apply to them. GQBs are also covered by the SENDO provisions relating to knowingly helping others to do something made unlawful under SENDO. Articles 34–39 of SENDO address the specific obligations of GQBs, and the Special Educational Needs and Disability (General Qualifications Bodies) (Relevant Qualifications, Reasonable Steps and Physical Features) (Amendment) Regulations (NI) 2008 list the qualifications in question. They include entry-level qualifications, GCE A and AS levels, GCSEs, GNVQs and the International Baccalaureate. As such, the Council for the Curriculum, Examinations and Assessment (CCEA), Edexcel, the Assessment and Qualifications Alliance (AQA), Oxford, Cambridge and RSA Examinations (OCR) and the Welsh Joint Education Committee (WJEC) are GQBs covered by SENDO. A relevant general qualification cannot also be a professional and trade qualification. Discrimination by trade and professional qualifications bodies is unlawful under the Part 2 of the employment provisions described above. It is possible that schools and colleges could be jointly liable with a GQB for unlawful disability discrimination in the context of delivering examinations. A GQB must not discriminate in its arrangements for determining on whom to confer a relevant general qualification, the terms on which it confers, renews or extends such a qualification, refusing or deliberately omitting to grant a disabled person’s application for a qualification, or withdrawing a qualification or varying the terms on which the disabled person holds it. Nor must a GQB treat a disabled person less favourably on the grounds of his or her disability or without justification for disability-related reasons. The reasonable adjustments duty applies, as do the duties not to harass or victimise a disabled person. Under article 35 of SENDO, where the application of a competency standard results in disabilityrelated less favourable treatment, justification can only be made out where the competency standard is, or would be, applied equally to persons who do not have the particular disability and if its application is a proportionate means of achieving a legitimate aim. The duty to make reasonable adjustments is subject to two knowledge requirements on the part of the GQB. First, the GQB must know that the disabled person concerned may be an applicant for a relevant general qualification. Second, the GQB must know that the person has a disability and is likely to be placed at a substantial disadvantage compared with people who are not disabled. The reasonable adjustments duty is triggered where a provision, criterion or practice (other than a competence standard) places a disabled person (subject to some exemptions discussed below) at a substantial disadvantage in comparison with non-disabled persons or where any physical feature of premises occupied by a GQB places a disabled person who holds a relevant qualification conferred by the body, or applies for such a qualification, at a substantial disadvantage in comparison with

Disability Discrimination

381

non-disabled persons. The reasonable adjustments to premises are subject to similar rules as detailed above in the discussion of Part 3 of the DDA. It is the duty of the GQB to take such steps as are reasonable in all the circumstances of the case to prevent a physical feature having a discriminatory effect. Further details are provided by the ECNI’s draft guide to disability discrimination law relating to GQBs. At the time of writing, the duty to make reasonable adjustments does not apply to competence standards, but that may soon be changed by legislation and the process of assessing competence standards is already, generally speaking, subject to the reasonable adjustments duty. SENDO provides for claims that a GQB has discriminated against a person to be heard in the county court. The details are similar to those discussed above regarding the enforcement of claims in the FHE sector.

The UN Convention on the Rights of Persons with Disabilities This Convention (the CRPD) is an international agreement which reaffirms that people with disabilities have the same human rights as everyone else. The UK ratified it on 8 June 2009. To monitor implementation of the CRPD in Northern Ireland, the government established an ‘Independent Mechanism’ made up of the ECNI and the Northern Ireland Human Rights Commission. There can be no complaint to a local court or tribunal about breaches of the Convention, but the UN Committee on the Rights of Persons with Disabilities can consider individual cases and investigate perceived violations of CRPD rights. More information on this can be obtained from either the ECNI or the Northern Ireland Human Rights Commission.

Useful Contacts Disability Action Portside Business Park 189 Airport Road West Belfast BT3 9ED tel: 028 9029 7880 textphone: 028 9029 7880 www.disabilityaction.org Equality Commission for Northern Ireland Equality House 7–9 Shaftesbury Square

382

George Kilpatrick

Belfast BT2 7DP tel: 028 90 500 600 textphone: 028 90 500 589 www.equalityni.org Northern Ireland Human Rights Commission Temple Court 39 North Street Belfast BT1 1NA tel: +44 (0) 28 9024 3987 email: [email protected] www.nihrc.org Department of Education Northern Ireland Rathgael House Balloo Road Rathgill Bangor BT19 7PR tel: 028 9127 9279 fax: 028 9127 9100 email: [email protected] www.deni.gov.uk/index.htm TSO 19a Weavers Court Weavers Court Business Park Linfield Road Belfast BT12 5GH tel: +44 (0)870 600 5522 email: [email protected] www.tsoshop.co.uk http://www.legislation.gov.uk/

17 Sexual Orientation Discrimination BARRY FITZPATRICK

The History of Sexual Orientation Discrimination Law in Northern Ireland The first element of sexual orientation discrimination law to be introduced in Northern Ireland was set out in section 75 of the Northern Ireland Act 1998, sexual orientation being one of the nine grounds included in the ‘equality duty’ in section 75(1) but not in the ‘good relations duty’ in section 75(2). The predecessor of section 75 was an equality auditing policy, known as Policy Appraisal and Fair Treatment (PAFT), in which equality of opportunity on grounds of sexual orientation had also been included. PAFT was modelled on gender auditing policies emanating from Whitehall but was of much broader reach. This original inclusion, in the early 1990s, pre-dated any other formal policies addressing sexual orientation discrimination. It is all the more remarkable given the perceived sensitivities at the time. These sensitivities had not dissipated by the time of the Northern Ireland Act, but the sexual orientation ground nonetheless survived legislative scrutiny. This too was a remarkable legislative development. Not only was a form of sexual orientation discrimination law enshrined in what was later described as a ‘constitutional Act’, it was also included in the ‘Equality and Human Rights’ section of the Belfast Agreement, an international treaty between the UK and Ireland. This was the first ever reference to sexual orientation discrimination in any international agreement. However, section 75 was not the first time that Northern Ireland law had contributed to the development of a framework of legal protection for lesbian, gay, bisexual and transgender (LGBT) people. The first ever case on LGBT rights to succeed before the European Court of Human Rights (ECtHR) was Dudgeon v UK (1981). Although homosexual acts had been at least partially decriminalised in England and Wales from 1967, it took Dudgeon’s victory, on grounds of breaches of his right to a private life under Article 8 of the European Convention on Human Rights, to force the decriminalisation of homosexual acts by the Homosexual Offences (NI) Order 1982.

384

Barry Fitzpatrick

This pattern of developments in sexual orientation discrimination law in Northern Ireland, generated from the Westminster Parliament and from European institutions, continued with the enactment of Northern Ireland Regulations governing first, employment equality law in 2003 and then, equality law in nonemployment fields in 2006. Mention will also be made in this chapter of the Civil Partnership Act 2004, a UK-wide statute. The Northern Ireland Assembly has yet to pass any legislation developing sexual orientation discrimination protection. The most recent legislative development in Great Britain, the Equality Act 2010, has not been replicated in Northern Ireland. Nor has any progress been made with a ‘Single Equality Act’ for Northern Ireland, despite an intensive consultation exercise in 2004. Differences therefore remain between the law on sexual orientation discrimination in Northern Ireland and in Great Britain and these will be highlighted in this chapter.

The 2003 Employment Regulations Substantive provisions on sexual orientation discrimination law were introduced in Northern Ireland by way of the Employment Equality (Sexual Orientation) Regulations (NI) 2003 (‘the 2003 Employment Regulations’). These were brought forward by a direct rule administration and replicate the equivalent legislation in Great Britain, the Employment Equality (Sexual Orientation) Regulations 2003. Both sets of regulations were initiated as a result of the need to transpose the EU Framework Employment Equality Directive (Council Directive 2000/78/EC) into domestic law. This Framework Directive post-dated by some six months the Race and Ethic Origin Directive (Council Directive 2000/43/EC), which covered both employment and non-employment fields. The Framework Directive deals only with employment and vocational training (although institutes of further and higher education are covered under the 2003 Employment Regulations). Otherwise all the non-discrimination principles in the Race and Ethic Origin Directive are also found in the Framework Directive, which covers sexual orientation, religion or belief, disability and age. Care needs to be taken when comparing EU-generated legislation with other equality regimes, because EU-derived Regulations are enacted under the European Communities Act 1972. Section 2(2) of the 1972 Act allows secondary legislation to be enacted to fulfil ‘Community obligations’. Perversely, this has been interpreted in Whitehall (and hence in Stormont) as requiring that only the perceived minimum requirements of an EU Directive should be enacted in domestic Regulations. One anomaly in the 2003 Employment Regulations in Northern Ireland is that the Equality Commission is not given the full range of powers which it enjoys under other equality enactments. Although it was given general duties in relation to sexual orientation, as well as powers of research and legal assistance, it does not have powers of investigation in the fields of employment and training.

Sexual Orientation Discrimination

385

In Great Britain, the Equality and Human Rights Commission does enjoy those powers. (The 2006 Regulations, discussed next, do give a power of investigation to the Equality Commission, but it is unclear whether this applies only within the scope of the 2006 Regulations or also within the scope of the 2003 Regulations.)

The 2006 Goods and Services Regulations The enactment of the Equality Act (Sexual Orientation) Regulations (NI) 2006 (‘the 2006 Goods and Services Regulations’), dealing with fields outside employment and training, was bound up with the outworking of the enactment of the Equality Act 2006 in Great Britain. The 2006 Act included provisions on discrimination and harassment on grounds of religion or belief outside the fields of employment and training. LGBT lobby groups argued that discrimination and harassment provisions on grounds of sexual orientation should also be included. As a compromise, a regulation-making provision was included in section 82 of the 2006 Act, allowing for ministerial regulations in both Great Britain and Northern Ireland.

Harassment In Great Britain, the attitude was taken that the draft sexual orientation regulations should not include harassment provisions, as the religion and belief provisions in the 2006 Act had omitted such provisions. There is a long history to this outcome. The original religion and belief harassment provisions, modelled on those found in the EU Directives, were struck out in the House of Lords and not reinstated, even in modified form, in the House of Commons. Due to some ‘understanding’ between the UK government and LGBT lobby groups, the draft sexual orientation regulations mirrored precisely those on religion and belief. This ‘understanding’ persisted into the enactment of the Equality Act 2010 for Great Britain, which does not contain any harassment provisions, whether on religion and belief or sexual orientation, in relation to goods and services, public functions, premises and schools. This was not the approach taken in Northern Ireland. The direct rule administration decided not to model the draft Northern Ireland Regulations on the religion and belief provisions of the 2006 Act. After all, the equivalent religion and belief provisions in Northern Ireland were in the long-standing Fair Employment and Treatment (NI) Order 1998. The draft Northern Ireland Regulations were modelled instead on the non-employment provisions of the Race Relations (NI) Order 1997, which had already been amended in 2003 to satisfy the requirements of the EU Race and Ethnic Origin Directive in non-employment fields. In its consultation document on the proposed 2006 regulations the Office of the First Minister and Deputy First Minister (OFMDFM) stated that, given the controversy over the harassment provisions in Great Britain, it was ‘minded’ not to

386

Barry Fitzpatrick

include such provisions in the draft Northern Ireland Regulations. But, following responses from the Equality Commission and LGBT lobby groups, this position was reversed and equivalent harassment provisions to those already in the Race Relations (NI) Order, covering areas such as education and housing as well as the provision of goods, facilities and services, were included in the 2006 Regulations. Harassment was defined in Regulation 3(3) as follows: (3) A person (‘A’) subjects another person (‘B’) to harassment in any circumstances relevant for the purposes of any provision referred to in these Regulations where, on the ground of sexual orientation, (‘A’) engages in unwanted conduct which has the purpose or effect of— (a) violating B’s dignity; or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

This was not the end of the saga. In 2007, an application for judicial review was launched against the 2006 Regulations, in particular the harassment provisions, by the Christian Institute and others (Re Christian Institute’s Application for Judicial Review, 2007). There were numerous interveners on both sides, including the Northern Catholic Bishops on behalf of the applicants and the Human Rights Commission, the Equality Commission and the Coalition on Sexual Orientation on behalf of OFMDFM. The argument in the case largely revolved around ‘case studies’ provided by the Northern Catholic Bishops. The court ruled that there had not been adequate consultation on the decision to insert harassment provisions into the draft Regulations after the initial consultation, and it concluded: By reason of that finding and of the extended reach of the harassment provisions beyond that of discrimination and statutory harassment, the wider definition of harassment than that appearing in the European Directive, the concerns of the [House of Lords and House of Commons] Joint Committee [on Human Rights] and the added consideration required when the offending matter is grounded in religious belief, the harassment provisions in the Regulations will be quashed. (para 43)

There was no appeal from the decision, OFMDFM being once again part of the devolved Executive. This can be seen as unfortunate. On the wider constitutional point, there are serious issues, left unresolved by the Christian Institute litigation, as to the extent to which amendments to draft legislation should be subject to further consultation and possible judicial intervention. On the ‘breadth’ of the quashed harassment provisions, including the balance between the right to freedom of belief and the right not to be discriminated against on the basis of sexual orientation, more recent rulings of the ECtHR (such as Eweida v UK, 2013) and of the UK Supreme Court (such as Preddy v Hall, 2013) indicate that the balance should be struck in a different manner from that favoured by the High Court in the Christian Institute case. No attempt has been made to meet the requirements of the judgment by inserting a narrower definition of harassment, perhaps by taking out the reference to an ‘offensive’ environment, which was the most contentious aspect of the previous definition. Nor has any attempt been made to revise the ‘religious belief ’ exception

Sexual Orientation Discrimination

387

in regulation 16 of the 2006 Goods and Services Regulations to accommodate these concerns. It remains the case that claims of direct discrimination might be constructed in relation to some harassment on grounds of sexual orientation. Nonetheless, LGBT people operating in environments where they might expect to be protected from harassment, such as schools, care homes and prisons, remain less well protected than they are on other equality grounds.

Public Functions A significant anomaly between the 2006 Goods and Services Regulations and the provisions of the Equality Act 2010, shared with the provisions of the Race Relations (NI) Order 1997 upon which the 2006 Regulations were based, lies in the field of carrying out public functions. Uncertainty over the extent to which the 2006 Regulations extend to the provision of public services stretches back to the House of Lords decision in Re Amin (1983), which concerned a voucher system by which some Commonwealth citizens could apply to settle in the UK if they were ‘head of the household’. A challenge to this system based on the Sex Discrimination Act 1976 failed, on the ground that the provisions in that Act on goods, facilities and services were intended to cover only facilities and services which ‘could be done by a private person’. The Equality Act 2010 removed this anomaly in Great Britain (through s 29(6)), but it persists in the 2006 Goods and Services Regulations in Northern Ireland, as it does in the Race Relations (NI) Order 1997. In Great Britain the Amin anomaly was partly resolved at an earlier stage in the context of race discrimination. Following the recommendations of the Macpherson Commission into the murder of Stephen Lawrence, the Race Relations (Amendment) Act 2000 was passed to ensure that race discrimination was prohibited in the carrying out of public functions, including policing. When the 1976 Act came to be amended in order to transpose the EU Race and Ethic Origin Directive 2000, it was necessary to amend the non-employment provisions of the Act so as to include harassment provisions, but because the officials in Whitehall were of the view that the Directive covered only some public functions, only those functions were included within the scope of the harassment provisions. The amendments made by the 2000 Act were never extended to Northern Ireland, so in the 2006 Regulations only those public functions perceived to be covered by the Race and Ethnic Origin Directive were included within the scope of the discrimination and harassment provisions on the carrying out of public functions. Hence, although the Amin anomaly has been narrowed in Northern Ireland, it still persists in both the Race Relations (NI) Order 1997 and the 2006 Goods and Services Regulations. Regulation 12 of the 2006 Regulations provides: (1) It is unlawful for a public authority— (a) to discriminate against a person on the grounds of his sexual orientation; (b) to subject a person to harassment,

388

Barry Fitzpatrick

in the course of carrying out any functions of the authority, which consist of the provision of: (a) (b) (c) (d)

any form of social security healthcare any other form of social protection or any form of social advantage,

which does not fall within regulation 5.

There is a perplexing difference in punctuation between Regulation 12 and Article 20A of the Race Relations (NI) Order 1997, as amended, upon which Regulation 12 is based. Nonetheless, it appears that Regulation 12 was originally intended to apply only to the specific public functions included within it. This limited scope of the ‘public functions’ provision did not apply to the equivalent provisions in the Goods and Services Regulations for Great Britain and, in any event, the Equality Act 2010 removes all limits to the application of the sexual orientation provisions to public functions. Therefore, the Amin lacuna persists in Northern Ireland’s equality law, at least in relation to sexual orientation and race. Even before the intervention of amending legislation in Great Britain, courts and tribunals did seek to limit the impact of the Amin distinction and it is possible that some of those decisions would be applied in Northern Ireland. For example, in a number of cases the courts have included a range of police functions within the concept of ‘services (see Farah v Commissioner of Police for the Metropolis, 1998; Brooks v Commissioner of Police for the Metropolis, 2002). In Gichura v Home Office (2008) the facilities in an immigration detention centre, run by a private company, were held to be covered by the ‘services’ provisions, even though reception procedures integral to the immigration process were not. An issue raised but left unresolved in the Christian Institute litigation was whether the setting of the national curriculum was covered by the ‘services’ provisions or excluded by the Amin distinction. It remains the case that the Amin decision casts a shadow over the extent to which public functions are covered by sexual orientation discrimination law in Northern Ireland, an anomaly which no longer applies in Great Britain or in the law governing disability discrimination in Northern Ireland.

Direct Discrimination Regulation 3(1) of the 2003 Employment Regulations sets out the typical direct discrimination definition, modelled on the definition in the Framework Directive and other EU legislation. It provides: For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if—(a) on grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons …

Sexual Orientation Discrimination

389

This formulation—‘on grounds of sexual orientation’—allows for discrimination claims to be made whether or not the claimant’s own sexual orientation is at issue. Direct discrimination claims can include perceived sexual orientation and also discrimination by association with another person. In Lacey v University of Ulster (2006), the Tribunal accepted that the claimant’s academic interest in the history of homosexuality in Ireland could be the basis for a direct discrimination claim. In English v Thomas Sanderson Blinds Ltd (2009) the Court of Appeal in England and Wales held that sexual innuendo, implying that a heterosexual employee was a homosexual, could fall within the scope of the Regulations. In Northern Ireland’s tribunal system there have been a few, largely undefended, cases where direct discrimination claims have been accepted, such as Hutton v Rainbow Garland (2013) and XY v Rainbow Garland (2013). Generally speaking, claimants have failed to establish a sufficient causal link between their treatment and perceived or actual sexual orientation, as in Kelso v Whitehead Golf Club (2010) and Rosbotham v Department for Social Development (2009). There continues to be controversy over what amounts to direct discrimination as opposed to indirect discrimination. In the context of sexual orientation this came to a head in Great Britain in what are known as the ‘bed and breakfast’ cases. In Preddy v Hall (2013), for instance, the Supreme Court had to consider issues succinctly put by Lady Hale in the opening sentences of her judgment: Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple? Does it make any difference that the couple have entered into a civil partnership?

While there was general agreement that the refusal was unlawful, the Supreme Court Justices could not agree on whether the refusal amounted to direct or indirect discrimination. In her leading judgment Lady Hale said that this was a case of direct discrimination, but only because the claimants were in a civil partnership. She was strongly influenced by the inclusion in the Great Britain Regulations of regulation 3(4) which provides: For the purposes of paragraphs (1) and (3), the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference in the relevant circumstances.

Lady Hale took from this provision that any discrimination between married couples and civil partners must be direct discrimination. Intriguingly, the 2006 Goods and Services Regulations in Northern Ireland, which were enacted before the Great Britain Regulations, do not contain this provision. Lord Kerr, formerly the Lord Chief Justice of Northern Ireland, agreed with Lady Hale that regulation 3(4) was crucial to a finding of direct discrimination. Lord Toulson too made the telling remark that the hotel owners’ literature restricted double accommodation to ‘heterosexual married couples’, so he seemed to intimate that the reference to married couples was central to his finding that there was direct discrimination. The remaining four Justices found that there had been only indirect discrimination.

390

Barry Fitzpatrick

It would seem to be the case that the omission from the 2006 Goods and Services Regulations in Northern Ireland of an equivalent to regulation 3(4) in the Great Britain Regulations means that refusing a double bed to a gay couple, even if they are in a civil partnership, would amount only to indirect discrimination. However, there is another twist to the saga. Lady Hale made it clear that courts in Great Britain should endeavour to interpret both employment and non-employment related areas of discrimination law consistently with EU law. In Northern Ireland the 2003 Employment Regulations transpose the Framework Directive and the 2006 Goods and Services Regulations, as well as repeating the definitions in the 2003 Regulations, are based on the amended Race Relations (NI) Order 1997, which transposes the Race and Ethnic Origin Directive in both the employment and non-employment fields. In the Hay case (2013) the Court of Justice of the European Union (CJEU) recently concluded that restricting benefits to married couples is a form of direct discrimination under the Framework Directive. France amended its Civil Code in 1999 to allow for civil solidarity pacts (the French acronym being PACS) but the collective employment agreement at issue in this case had not been not amended to equate marriage and PACS until 2008. The claimant entered into a PACS in 2007 and claimed the relevant benefits, including leave to get married and a marriage bonus. France’s Cour de Cassation referred the issue of whether this denial of marriage benefits was justified indirect discrimination to the CJEU, but the CJEU decided that it was a case of direct discrimination, saying: The difference in treatment based on the employees’ marital status and not expressly on their sexual orientation is still direct discrimination because only persons of different sexes may marry and homosexual employees are therefore unable to meet the condition required for obtaining the benefit claimed. (para 44)

There is obviously a distance between a case of marriage benefits in employment and access to a double bedroom in a hotel or bed and breakfast accommodation. Nevertheless, the Hay ruling is authoritative for the fields covered by the Framework Directive, that is, employment and training. If tribunals and courts in Northern Ireland follow the Supreme Court approach in Preddy, of seeking consistency between those fields governed by EU law and those which are not, it could be argued that the Hay decision certainly supports the approach of the majority in Preddy that a prohibition on non-married couples is direct discrimination against those in civil partnerships. Since at least four of the Justices in Preddy considered that a married-only rule was potentially indirect discrimination against same-sex couples who were not in civil partnerships, it is unlikely that the Hay decision, even on its widest interpretation, will disturb that consensus in the Supreme Court. It should be noted, finally, that there is a discrepancy between the definitions of direct discrimination in the Equality Act 2010 and in the 2003 Employment Regulations. The Westminster legislature, in its wisdom, has ‘reformulated’ the direct discrimination. Section 13(1) of the 2010 Act states: A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

Sexual Orientation Discrimination

391

This introduction of ‘because of a protected characteristic’, instead of ‘on grounds of ’, is apparently an exercise in ‘plain English’. Assurances have been given that the change makes no difference, but it remains to be seen, with continuing controversy over the dividing line between direct and indirect discrimination, whether that is indeed the case. In any event, readers in Northern Ireland should be aware that cases will start to emerge in the courts and tribunals of Great Britain where this alternative wording is considered. The term ‘protected characteristic’ also has no currency in Northern Ireland, nor for that matter, in Ireland or the rest of the EU, although some references are now being made to ‘protected grounds’.

Indirect Discrimination Both the 2003 Employment Regulations and the 2006 Goods and Services Regulations employ the EU-based definition of indirect discrimination. This is in contrast to the Race Relations (NI) Order 1997, as amended, which employs a convoluted combination of EU and pre-EU definitions. Regulation 3 of the 2003 Regulations provides: (1)

For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if— … (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same sexual orientation as B, but— (i) which puts or would put persons of the same sexual orientation as B at a particular disadvantage when compared with other persons, (ii) which puts B at that disadvantage, and (iii) which A cannot show to be a proportionate means of achieving a legitimate aim.

Until the issue of ‘married only’ provisions emerged, there was little litigation on indirect discrimination scenarios on grounds of sexual orientation. As stated above, the Supreme Court Justices in Preddy were agreed that, if the refusal of accommodation was not direct discrimination, it was indirect discrimination. This was because it was self-evident that same-sex couples were placed ‘at a particular disadvantage’, as they could not get married. As the Privy Council stated in Rodriguez (2009): ‘Thus it is a form of indirect discrimination which comes as close as it can to direct discrimination’ (para 19). However, one difficulty in establishing ‘a particular disadvantage’ in sexual orientation cases is that the concept is still dominated by a quantitative approach, going back to the original definition of indirect discrimination in the Sex Discrimination Act 1975 and the Race Relations Act 1976. As indicated above, the pre-EU definition survives in the Race Relations (NI) Order 1997,

392

Barry Fitzpatrick

as amended, in areas not covered by EU law. Thus, article 3 of the 1997 Order still provides: (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if— (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but— (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it.

The key element in article 3(1)(i) is clearly quantitative and involves an elaborate process of establishing ‘pools of comparison’ within which the ‘disproportionate effect’ can be identified. This exercise made what was already an opaque principle into an even more difficult one to apply. In practice, such a statistical approach was easier to apply in some sex discrimination cases, and in some early race discrimination cases when only a limited number of ethnic minority communities needed to be identified. It is submitted here that the EU test for indirect discrimination is primarily qualitative, that is, it asks if there is a sufficient link between the ‘provision, criterion or practice’ and the protected ground, in this case, sexual orientation. Recital 15 of the Preamble to the Framework Directive states: ‘Such rules [on inference of facts] may provide, in particular, for indirect discrimination to be established by any means including on the basis of statistical evidence.’ This presupposes that non-statistical methods should also be employed. It is also good equality policy to take both quantitative and qualitative evidence into account in order to establish ‘adverse impact’. Likewise, Article 2.2(b) of the Framework Directive provides: (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons …

We can see that the word ‘particular’ is used both in the context of ‘particular sexual orientation’ and ‘particular disadvantage’. While ‘particular’ might mean either ‘substantial’ or ‘specific’, it must mean ‘specific’ in relation to ‘particular sexual orientation’ and therefore it is difficult to construe ‘particular disadvantage’ as meaning anything other than ‘specific disadvantage’. This approach is consistent with a wider approach to discrimination, particularly in the all-embracing Race and Ethnic Origin Directive, but also replicated in the Framework Directive.

Sexual Orientation Discrimination

393

An example of a wider approach can be seen in the case of Eweida v UK (2013), one of the religious belief cases before the ECtHR. In discussing ‘manifestations of a religion’, the Court states: In order to count as a ‘manifestation’ within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. (para 82)

This approach, of a ‘sufficiently close and direct nexus’, is more consistent, albeit in a different context, with a ‘specific’ approach towards ‘particular disadvantage’. This is not to say that quantitative evidence is irrelevant. It may well provide strong evidence of a sufficient nexus to establish a specific disadvantage. However, at a time when very many LGB people will be reluctant to identify their sexual orientation, a purely quantitative approach is not appropriate and does not reflect the broader approach to indirect discrimination introduced in the Race and Framework Directives. For example, identifying an LGB person’s sexual orientation without their (at least implicit) consent places many LGB people at a specific disadvantage. There is no need to establish elaborate ‘pools of comparison’ to reach this conclusion. As regards ‘justification’, which is permitted in situations of indirect discrimination but not direct discrimination, there is a consensus in the ‘bed and breakfast’ cases that the marriage requirement cannot be justified. The approach taken by the Supreme Court in Preddy, as set out by Lady Hale, is that religious beliefs, or other sincerely held beliefs, cannot constitute a ‘legitimate aim’, at least outside the specific exceptions provided for religious organisations. Instead, the Supreme Court engaged in a discussion of the balance between sexual orientation and religious belief rights in the European Convention, reaching a balance not evidenced in the decision of the High Court of Northern Ireland in the Christian Institute case (2007).

Harassment While, as explained earlier (see pages 385–87) the harassment provisions have been struck down in the 2006 Goods and Services Regulations, they remain in place in the 2003 Employment Regulations. Regulation 5 of the 2003 Regulations provides: (1) For the purposes of these Regulations, a person (‘A’) subjects another person (‘B’) to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of— (a) violating B’s dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

394 (2)

Barry Fitzpatrick Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.

The reason why the approach in Regulation 5(1)(a) and (b) is disjunctive, rather than conjunctive as in the EU definition, is that pre-existing case law, particularly on sexual harassment, took a wider approach than that taken in the definition in the Race and Framework Directives. Since EU directives prohibit ‘regressive’ transposition, it was felt that the transposition in both Great Britain and Northern Ireland should take a disjunctive approach, an explanation apparently not put to the High Court in the Christian Institute case. There have been a few sexual orientation harassment cases in Northern Ireland’s tribunals. In the undefended case of Moore v Adman Publishing (2011) the claimant had been asked if she was gay and she was called a lesbian. Nonetheless, the tribunal stated that the claimant was ‘well educated, very articulate and intelligent’ and refused to conclude that these questions amounted to an ‘offensive’ environment. This definition of harassment in the 2003 Regulations is at odds with the definition in both the Framework Directive and the Equality Act 2010. Article 2.3 of the Framework Directive provides: Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

Similarly, section 26(1) of the Equality Act 2010 in Great Britain provides: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The distinction, other than the disjunctive issue mentioned above, is that both the EU definition, and that in the law of Great Britain, speak of ‘unwanted conduct related to’ sexual orientation, rather than of ‘on grounds of ’ sexual orientation. In English courts, the EU definition has been construed to cover some examples of what can be called ‘third-party harassment’, that is, harassment by parties other than other employees of the same employer (or same provider of services). For example, in Equal Opportunities Commission v Secretary of State for Trade and Industry (2007) the English High Court accepted that the EU definition could include a scenario in which an employer allows an unacceptable environment to be created, even if the environment was created by a third party. This approach was followed by the Employment Appeal Tribunal in Sheffield City Council v Norouzi (2011), where a care worker was racially harassed by those in his care.

Sexual Orientation Discrimination

395

Applying EU law principles, the Framework Directive must be given ‘direct effect’ against public bodies and non-public bodies performing public functions. The 2003 Employment Regulations are also subject to the ‘indirect effect’ of the Framework Directive, whereby every effort must be made to interpret the 2003 Regulations in a way which conforms with the terms of the Directive. Nonetheless, on this issue, Northern Ireland’s sexual orientation discrimination law is not in conformity with EU law and the 2003 Employment Regulations should therefore be amended accordingly, as has already occurred in Great Britain thanks to the Equality Act 2010. The recent repeal of ‘third party harassment’ provisions in Great Britain under the Enterprise and Regulatory Reform Act 2013 has no bearing on this analysis.

Civil Partnerships and Same-Sex Marriage The Civil Partnership Act 2004 provides, in separate Parts, for civil partnerships in England and Wales, Scotland and Northern Ireland. An outstanding issue is whether the right to enter into a same-sex marriage should be extended to Northern Ireland. The right is already provided for in England and Wales as a result of the Marriage (Same Sex Couples) Act 2013, and is provided for in Scotland under the Marriage and Civil Partnership (Scotland) Act 2014, which came into force on 21st May 2014. Some argue that Northern Ireland could be forced to introduce, or at least recognise, same-sex marriage once these developments occur elsewhere in the UK. This might depend on whether the ECtHR decides to uphold the right to enter into a same-sex marriage. As of September 2014, it has not gone that far. In Vallianatos v Greece (2013) the Grand Chamber of the ECtHR found against Greece because it had enacted civil partnership legislation for opposite-sex couples but not same-sex couples. The Court concluded that same-sex relationships could come within the ambit of Article 8 of the European Convention (the right to a private and family life), stating the Court is of the view that the applicants’ relationships in the present case fall within the notion of ‘private life’ and that of ‘family life’, just as would the relationships of different-sex couples in the same situation. (para 73)

Discrimination between same-sex and opposite-sex partners could, therefore be unlawful under Article 14 of the European Convention on Human Rights taken in conjunction with Article 8, and the Court so held in this case. It restated its approach to sexual orientation discrimination as follows: The Court has repeatedly held that, just like differences based on sex, differences based on sexual orientation require ‘particularly convincing and weighty reasons’ by way of justification.

396

Barry Fitzpatrick

The ECtHR was of the view that Greece had failed to discharge the burden of justifying the distinction it wanted to make. It remains to be seen whether same-sex marriage could be achieved through court action in Northern Ireland or whether any such development will have to wait the development of a political consensus in the Northern Ireland Assembly. On a related matter, the prohibition which Northern Ireland law continues to impose on civil partnership ceremonies taking place in religious premises (s 6(1)(b) and (2) of the Civil Partnerships Act 2004) is more problematic from a human rights perspective. Section 202 of the Equality Act 2010 provides a regulation-making power to allow for civil partnership ceremonies on religious premises in Great Britain, but there is no such provision for Northern Ireland. Cases such as Vallianatos v Greece now recognise some forms of civil partnerships as being within the ambit of Article 8. Moreover, it is indisputable that a religious ceremony is a core manifestation of religious belief and, as the ECtHRstated in Eweida v UK (2013): In order to count as a ‘manifestation’ within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. (para 82)

A prohibition on a religious organisation from conducting these ceremonies, when they wish to do so, would appear to be a breach of Article 14, in conjunction with Article 9. This is therefore another example of an aspect of sexual orientation discrimination law in Northern Ireland which requires further consideration.

Conclusion The law on sexual orientation discrimination law in Northern Ireland has been revolutionised in the past 10 years, although the Northern Ireland Assembly has failed, of its own volition, to pass any of relevant legislative provisions. There is therefore a range of lacunae in Northern Ireland’s sexual orientation discrimination law, some of which can be partly addressed by the application of EU law, such as the wider definition of harassment in the EU Directives. Other lacunae, for example the prohibition of civil partnership ceremonies in religious premises, could perhaps be challenged through arguments based on human rights. There are other gaps and inconsistencies, such as in relation to harassment outside the employment sphere and to discrimination occurring in the exercise of public functions, which allow injustices to persist. We should not have to wait for single equality legislation in Northern Ireland for these various gaps and inconsistencies to be addressed.

Sexual Orientation Discrimination

Useful Contacts Equality Commission for Northern Ireland Equality House 7-9 Shaftesbury Square Belfast BT2 7DP tel: 028 90 500 600 www.equalityni.org The Rainbow Project 9-13 Waring Street, 1st floor Belfast BT1 2DX Tel: 028 9031 9030 www.rainbow-project.org

397

18 Age Discrimination BARRY FITZPATRICK

The History of Age Discrimination Law in Northern Ireland ‘Age’ is one of the grounds included in the ‘equality duty’ imposed by section 75 of the Northern Ireland Act 1998 (see Chapter 12). The predecessor of section 75 was an equality auditing policy, known as Policy Appraisal and Fair Treatment (PAFT), in which equality of opportunity on grounds of age had also been included. As with other grounds, such as sexual orientation, this original attempt at protection against age discrimination, in the early 1990s, pre-dated any other formal policies in the field. Other than section 75, the only piece of age discrimination law in Northern Ireland is the Employment Equality (Age) Regulations (NI) 2006, which are a direct result of the transposition into domestic law of the EU Framework Employment Equality Directive (2000/78/EC). Unlike other equality grounds in Northern Ireland, the prohibition of age discrimination has not been extended into non-employment fields, such as education, housing and the provision of goods and services. The extension has occurred in Great Britain, through the Equality Act 2010, and the Office of the First Minister and Deputy First Minister (OFMDFM) is proposing to make the extension in Northern Ireland, but, at the time of writing, no firm timetable for this to occur has been made public. Northern Ireland became the second UK jurisdiction, after Wales, to introduce the position of an Older People’s Commissioner, by way of The Commissioner for Older People Act (NI) 2011. Modelled on The Commissioner for Children and Young People (NI) Order 2003, the 2011 is not, per se, an equality statute. According to section 2(1) of the Act, ‘the principal aim of the Commissioner in exercising the functions of the Commissioner under this Act is to safeguard and promote the interests of older persons’. According to Article 6(1) of the 2003 Order, ‘the principal aim of the Commissioner in exercising his functions under this Order is to safeguard and promote the rights and best interests of children and young persons’.

400

Barry Fitzpatrick

The 2006 Age Regulations The Employment Equality (Age) Regulations (NI) 2006 (the 2006 Age Regulations), which were subject to two sets of minor amending Regulations in that same year, replicate equivalent legislation in Great Britain, the Employment Equality (Age) Regulations 2006. The Framework Directive of 2000, mentioned above, gave Member States the opportunity to wait six years before transposing the provisions relating to disability and age. Since Great Britain and Northern Ireland already had disability discrimination law in place, the Disability Discrimination Act 1995 was amended in 2004 but, given the complete absence of pre-existing substantive provisions on age discrimination in any part of the UK, the full six-year period was taken full advantage of in that area. The 2006 Age Regulations are distinctive from laws governing other forms of discrimination in that they permit direct discrimination on grounds of age to be objectively ‘justified’, thereby arguably creating a ‘hierarchy of inequality’. This is because the Framework Directive made allowance for such justifications. As discussed in Chapter 17 on sexual orientation discrimination, EU-derived Regulations are enacted under the European Communities Act 1972. As with the Employment Equality (Sexual Orientation) Regulations (NI) 2003, the 2006 Age Regulations do not provide the Equality Commission with powers of investigation in the fields of employment and training.

Direct Discrimination Regulation 3(1) of the 2006 Regulations sets out a narrower direct discrimination definition than that found in the Framework Directive. It provides that: For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if—(a) on grounds of B’s age, A treats B less favourably than he treats or would treat other persons …

Associative Discrimination This formulation—‘on grounds of B’s age’—is controversial because it appears to exclude discrimination based on ‘perceived age’ or on association with another person. Regulation 3(3)(b) explicitly covers ‘apparent age’ but the position on discrimination through association remains less definite. The issue is largely resolved by the parallel application of the disability discrimination case, Coleman (Social policy), decided by the Court of Justice of the European Union (CJEU) in 2008. Coleman concerned alleged discrimination and harassment on grounds of the

Age Discrimination

401

disability of the applicant’s child. The CJEU concluded that the formulation in Article 2(2)(a) in the Framework Directive, ‘on any of the grounds [including disability and age] referred to in Article 1’, covered less favourable treatment on grounds of the disability of the claimant’s son. It therefore follows that discrimination on grounds of the age of a person associated with a claimant will also be covered by the definition of direct discrimination in the Framework Directive. In Great Britain the Equality Act 2010 now reflects this position, but in Northern Ireland the 2006 Age Regulations remain unamended. The question therefore arises as to how Northern Ireland’s courts and tribunals will deal with this inconsistency between the 2006 Age Regulations and the Framework Directive. The direct discrimination definition in Article 2(a) is ‘directly effective’, in that it is directly enforceable in the national courts against public bodies and any other ‘emanations of the State’ (Johnston v Chief Constable of the Royal Ulster Constabulary, 1986). But the Framework Directive can also have ‘indirect effect’ in national law, through interpretation of the incompatible provisions in a way which ‘as far as possible’ conforms with the terms of the Directive. Coleman was a private sector case and in it the Employment Appeal Tribunal (EAT) agreed with the Employment Tribunal that the Disability Discrimination Act could be rewritten in order to cover associative discrimination (EBR Attridge Law LLP v Coleman, 2009). The EAT considered it best, in effect, to add an additional provision to the direct discrimination provisions, which is adaptable to age discrimination cases. It reads: ‘A person also directly discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person.’

Justification A distinctive feature of the Framework Directive is that it allows for a general justification defence even in situations of direct age discrimination. Given the radical nature of this departure from basic principles of equality law and policy, it is necessary to set out the exact wording of Article 6(1) of the Directive: Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Already it can be seen that there are parallels with the justification provisions in relation to indirect discrimination in other fields. However, the potential ‘legitimate aims’ are more limited. Article 6 sets out a non-inclusive list of examples of apparently justifiable differences of treatment: (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

402

Barry Fitzpatrick

(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment; (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

Originally the draft 2006 Age Regulations included a restrictive list of legitimate aims. However, following controversy in Great Britain, the Regulations there and in Northern Ireland were finally enacted with an open-ended justification test. Indeed the same test is utilised for direct and indirect age discrimination. Regulation 3(1) outlaws discrimination if the alleged discriminator ‘cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim’. The task of delineating the scope of this justification defence for direct age discrimination has occupied the courts and tribunals at the level of the CJEU, the Supreme Court and Northern Ireland’s tribunals.

Case Law The key challenge to the open-ended nature of the defence was raised, initially by way of judicial review, in the Age Concern case (Age Concern England (Incorporated Trustees of the National Council for Ageing) (Social policy)) (2009). The CJEU ruled that an open-ended justification test was not incompatible with the Directive but emphasised that the aims involved had to be social policy aims, such as those identified in Article 6 of the Directive and that ‘a high standard of proof ’ was required to establish the legitimacy of the social policy aim. The provisions on the default retirement age in the 2006 Age Regulations (often fixed at 65) were removed in Northern Ireland by the Employment Equality (Repeal of Retirement Age Provisions) Regulations (NI) 2011, on the basis that they were not sustainable in light of cases such as Age Concern. After widespread litigation in the British courts and tribunals, and also before the CJEU, the Supreme Court gave definitive guidance on Article 6 in Seldon v Clarkson Wright & Jakes (2012). This was a case where a partner in a law firm was compulsorily retired at the age of 65. In the leading judgment in Seldon, Lady Hale emphasised that the justification test for direct age discrimination, as set out separately in Article 6 of the Directive, is stricter than the justification test for indirect discrimination. She stated that the case law of the CJEU makes a distinction between aims relating to employment policy, the labour market or vocational training (which are acceptable) and ‘purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness’ (which are not acceptable). Lady Hale reviewed the CJEU case law and identified a range of legitimate aims, namely: — promoting access to employment for younger people; — the efficient planning of the departure and recruitment of staff;

Age Discrimination

403

— sharing out employment opportunities fairly between the generations; — ensuring a mix of generations of staff so as to promote the exchange of experience and new ideas; — rewarding experience; — cushioning the blow for long-serving employees who may find it hard to find new employment if dismissed; — facilitating the participation of older workers in the workforce; — avoiding the need to dismiss employees on the ground that they are no longer capable of doing the job, which may be humiliating for the employee concerned; and — avoiding disputes about the employee’s fitness for work over a certain age. From these decisions, Lady Hale distilled two main themes, namely, intergenerational fairness and the dignity of the workers involved. Nonetheless, it is also necessary to establish that such aims are legitimate for the particular employer. As in Seldon, it is arguably a legitimate aim to avoid the embarrassment of assessing an older worker’s capabilities, but not if the employer operates sophisticated performance management systems. Thus the establishment of a legitimate aim in a particular case is a prelude to determining whether the means employed are proportionate, ‘appropriate and reasonably necessary’ in the terminology of Article 6. On the facts of Seldon, the Court concluded that staff retention and workplace planning came within the theme of intergenerational fairness and that avoiding performance management of older workers came within the theme of dignity of the workers involved. As made clear in Seldon, cost reduction cannot, on its own, be a legitimate aim within Article 6. Nonetheless, in Woodcock v Cumbria Primary Health Care Trust (2012), the Court of Appeal accepted that the implementation of a redundancy programme, which resulted in the claimant missing out on a substantial sum, was a legitimate aim of the Trust. The acceleration of the programme by the Trust, ‘on the unusual facts’, also came within the limits of proportionate means. Seldon has been relied upon in a range of cases in Northern Ireland’s tribunal system. The most significant is Lindsay v Department of Employment and Learning (2013). In this case, the claimant’s term of appointment as a panel member of industrial tribunals was to be terminated on his seventieth birthday. It was accepted that the retirement policy was direct age discrimination and that the issue before the tribunal was whether it was justified. The Department put forward three aims of the policy: — the introduction of new talent to the panel by encouraging a turnover of panel members; — the encouragement of recruitment of younger panel members in order to address a disparity in the current age profile of panel members in that there are a disproportionate number of panel members over 50 years of age and in particular over 66 years of age and none below the age of 40; and

404

Barry Fitzpatrick

— the updating of knowledge and skillsets in relation to modern workplace issues of the tribunal panel generally. The tribunal accepted all three aims as legitimate and then proceeded to ask itself further questions, namely, is the aim in fact being pursued, is the aim legitimate in the particular circumstances of the employment concerned, and are the means chosen proportionate,that is, appropriate and (reasonably) necessary? The tribunal concluded that all the aims were being pursued and were legitimate in the context of appointments as tribunal panel members. It was ‘persuaded … on the balance of probabilities’ that the case for proportionate means had been made out.

Indirect Discrimination The 2006 Regulations employ the EU-based definition of indirect discrimination: (1) For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if:

… (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but: (i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons (ii) which puts B at that disadvantage and (iii) which A cannot show to be a proportionate means of achieving a legitimate aim.

‘Age group’ is defined in regulation 3(3)(a) as being ‘a group of persons defined by reference to age, whether by reference to a particular age or a range of ages’. Once again, the definitive advice on indirect age discrimination comes from a Supreme Court ruling, Homer v Chief Constable of West Yorkshire Police (2012), which was heard in parallel with Seldon. The claimant’s employment was restructured both to recruit new workers, but also to retain existing workers, on the Police National Legal Database (PNLD). In the new grading system, a requirement of having a law degree was introduced in relation to the highest grade in a re-graded pay structure. The claimant was a highly experienced police officer but did not have a law degree. The basis of his claim was not simply that fewer relevant workers in this field of his age group had a law degree. Rather, it was that he did not have enough time before retirement to obtain a law degree. In the lower courts, it was accepted that this provision, criterion or practice was not indirectly discriminatory. However, again in a leading judgment by Lady Hale, these somewhat convoluted approaches to ‘particular disadvantage’ were rejected. As Lady Hale states the new formulation was not intended to make it more difficult to establish indirect discrimination: quite the reverse … It was intended to do away with the need for statistical comparisons where no statistics might exist. It was intended to do away with the complexities involved in identifying those who could comply and those who could not and

Age Discrimination

405

how great the disparity had to be. Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question. It was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages. (para 14)

In this case, impending compulsory retirement was closely associated with those in the claimant’s age group and so they were put at a particular disadvantage by the criterion. Indeed, although not argued in Homer, it may well be that requirements to have particular qualifications may place those in older age groups at a particular disadvantage and so justification could be an issue more generally. On justification, the tribunal had found that the aim of requiring a law degree, namely to facilitate the recruitment and retention of staff of appropriate calibre within the PNLD, was legitimate. However, the Supreme Court concluded that justification had to be considered differently in relation to recruitment and retention. What might be proportionate in terms of recruitment would not necessarily be so in relation to those already in post. Lady Hale also clarified a long-standing discrepancy between the wording of the justification test in British legislation (‘proportionate means’) and in EU Directives (‘appropriate and necessary’ means). To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so. One factor which has to be taken into account is whether there is a non-discriminatory alternative. Since the tribunal had not approached these issues in the correct fashion, the case was remitted to it. The advent of age discrimination law requires a reappraisal of what, as Lady Hale says, ‘was taken for granted’. In Northern Ireland, and indeed more widely, there is a culture of requiring qualifications as an essential criterion for many posts. However, the purpose of requiring qualifications is to show evidence of the expertise and skills needed to undertake the job. Many advisers suggest that, if a requirement to have a particular qualification puts people in an older age group at a particular disadvantage, an alternative criterion should be provided of exhibiting evidence of the required level of expertise and skills through other means, including experience. In Homer, the claimant had been doing the job to highly acceptable standards for 11 years, after a distinguished career as a police officer. It therefore ought to have been relatively easy to identify the expertise and skills which the holder of a law degree should have, in relation to the post in question, and to devise a parallel criterion whereby evidence of that expertise and those skills could be exhibited.

Harassment Regulation 6 of the 2006 Age Regulations provides: (1) For the purposes of these Regulations, a person (‘A’) subjects another person (‘B’) to harassment where, on grounds of age, A engages in unwanted conduct which has the purpose or effect of: (a) violating B’s dignity, or

406

Barry Fitzpatrick (b)

creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.

Paradoxically, the harassment definition in relation to age does not repeat the ‘on grounds of B’s age’ formulation which was found in the direct discrimination definition. Therefore, there is no need to ‘read down’ an associative harassment provision as suggested in Coleman in relation to the harassment provision in disability discrimination law. However, as discussed in Chapter 17 on sexual orientation discrimination law, this definition of harassment in the 2006 Age Regulations is at odds with the definition in both the Framework Directive and the Equality Act 2010. Article 2(3) of the Framework Directive provides: Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

Similarly, section 26(1) of the Equality Act 2010 in Great Britain provides: (1) A person (A) harasses another (B) if: (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of: (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The distinction is that both the EU definition, and that in the law of Great Britain, speak of ‘unwanted conduct related to’ age, rather than of ‘on grounds of ’ age. The EU definition, and subsequent definition in the Equality Act 2010, can be construed to cover some examples of ‘third party harassment’, that is, harassment by parties other than other employees of the same employer. Although age-based harassment may not be a frequent occurrence, there remains an inconsistency in the 2006 Age Regulations which ought to be rectified. Applying EU law principles, the Framework Directive must be given ‘direct effect’ against public bodies and non-public bodies performing public functions. The 2006 Age Regulations are also subject to the ‘indirect effect’ of the Framework Directive, whereby every effort must be made to interpret the 2006 Age Regulations in a way which conforms to the terms of the Directive.

Conclusion Although ‘age’ was included in section 75 of the Northern Ireland Act 1998, the advent of substantive age discrimination law in Northern Ireland has created

Age Discrimination

407

fresh challenges, which are evidenced by a range of cases in the Northern Ireland tribunals and also extensive litigation in the higher courts in Great Britain and before the CJEU. Partly this has been due to the complicated issue of justification for direct discrimination. Nonetheless, Homer provides an example of the lower courts and tribunals struggling to apply well-established principles to new grounds of discrimination law. It undermines those well-established principles to reach convoluted conclusions which would not have been reached in, say, a gender or race case. As Lady Hale states in the concluding paragraph of her judgment in Homer: It was important to establish the principles in a new area which many still find counterintuitive. It is not long ago that it was taken for granted that age was a relevant criterion in deciding how long people should be allowed to go on working. Now that has to be justified. The same is true of apparently neutral criteria which have an adverse impact upon people of a particular age. But both the Age Regulations and the Equality Act recognise that difficult balances have to be struck between the competing interests of different age groups. We all have a lot of learning to do. (para 27)

Useful Contacts Age NI 3 Lower Crescent Belfast BT7 1NR tel: 0808 808 7575 www.ageuk.org.uk/northern-ireland Commissioner for Older People for Northern Ireland Equality House 7-9 Shaftesbury Square Belfast BT2 7DP tel: 028 9031 1616 www.copni.org

19 Mental Disorder MICHAEL POTTER*

Introduction Many people have a ‘mental disorder’, for example, a mental illness or mental disability, which affects the functioning of their brain, mind and/or personality. Some of these people, with or without medication, can continue to live fully independent lives, responsible for themselves, families and jobs. But for others it can be difficult, and at times impossible, to perform ordinary tasks or make basic day-to-day decisions concerning themselves, family or work. Health and social care authorities have a responsibility to provide assistance, care and treatment in accordance with the law. Mental health law provides the regulatory framework within which mental health decision-makers (such as health and social care authorities and the Office of Care and Protection) perform the complicated task of striking an appropriate balance between various competing, and sometimes conflicting, obligations, rights, interests and other relevant factors, including: — — — — —

the health and welfare of the patient; the human rights of the patient; the health and welfare of the patient’s family/social network; the safety of the population; and available health and social services resources.

The concept of autonomy, or self-government, is central to mental health law. A person’s autonomy may be abrogated where, for example, the person’s mental disorder sufficiently impairs their ability to safeguard their own welfare and/or to act in a socially responsible manner. A mental health chapter contained in a human rights handbook must inevitably focus on the legal principles, rules and criteria governing the restriction or removal of a person’s autonomy. This chapter therefore concentrates on those central aspects of the civil legal framework * The author acknowledges assistance from Louise Arthurs, Solicitor of Law Centre (NI), in preparing this revised chapter.

410

Michael Potter

which commonly impact on the lives of persons with mental disorder and their autonomy, such as involuntary detention, guardianship, police powers, consent to treatment, the management of incapacitated patients’ property and affairs, and the respective roles of the Regulation and Quality Improvement Authority and the Mental Health Review Tribunal for Northern Ireland.

The Legal Framework The regulatory framework governing mental health care in Northern Ireland can be viewed at three levels: (1) European Convention law, (2) domestic law, including legislation and common law, and (3) other relevant standards for care and treatment, specifically, international standards and the code of practice issued under the Mental Health (NI) Order 1986.

European Convention Law There are three key provisions within the European Convention on Human Rights (ECHR) that relate to people with mental conditions—Articles 3, 5 and 8.

Article 3 Article 3 prohibits torture or inhuman or degrading treatment or punishment in the care and treatment of people with a mental condition, including their medical treatment. In the case of Herczegfalvy v Austria (1993) the European Court of Human Rights (ECtHR) intimated that treatment which conformed to psychiatric principles generally accepted at the time would not contravene Article 3. This is known as the ‘principle of therapeutic necessity’. In particular, the European Court stated that: The position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. While it was for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves, such patients nevertheless remain under the protection of Article 3, whose requirements permit of no derogation. (para 86)

The use of seclusion in psychiatric hospitals may amount to ‘inhuman or degrading treatment or punishment’, thereby contravening Article 3 of the Convention. There is a greater risk of seclusion contravening Article 3 if a health and social care

Mental Disorder

411

authority operates a policy or practice which fails to comply with the guidelines governing seclusion contained in the statutory code of practice and/or the need for seclusion is not reviewed with sufficient regularity (see R (Munjaz) v Ashworth Hospital Authority, 2005).

Article 5 Article 5 protects against arbitrary arrest and detention, although it expressly states that it is legal to deny liberty to ‘persons of unsound mind’. The ECtHR has not provided a definition of the concept ‘unsound mind’. In Winterwerp v Netherlands (1979) it said: The Convention does not state what is to be understood by the words ‘persons of unsound mind’. This term is not one that can be given a definite interpretation: … it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society’s attitude to mental illness changes, in particular so that a greater understanding of the problems of mental patients is becoming more wide-spread. (para 37)

According to the case law on the European Convention on Human Rights (see Winterwerp v Netherlands, 1979; Ashingdane v UK, 1985; Johnson v UK, 1999), a number of requirements have to be fulfilled if the detention of a person of unsound mind is to be lawful: — it must be medically established that the person concerned is of unsound mind; — the mental disorder must be of a kind or degree warranting compulsory confinement; — the validity of continued confinement depends upon the persistence of such a disorder; and — the detention must be in accordance with applicable domestic legal procedure. The ECHR specifically provides for the right of a detained person to challenge the legality of his or her detention. Under Article 5(4): Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

However, the rights of a person making such a challenge were circumscribed by the ECtHR in its decision in Megyeri v Germany (1992), where it stated: The judicial proceedings referred to in Article 5(4) need not always be attended by the same guarantees as those required under Article 6(1) for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. Special procedural safeguards may prove called for in order to protect the

412

Michael Potter

interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves. (para 22(b))

Article 8 Finally, Article 8 concerns the right of a person to his or her private and family life, home and correspondence. This obviously applies to people with mental conditions whether they are living at home, in residential accommodation or in a hospital. Article 8(2) permits interference with Article 8(1) rights if it is in accordance with law and ‘necessary in a democratic society in the interests of public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.

Domestic Law The Mental Health (NI) Order 1986 (the MHO) is the primary domestic legal source. The Order provides, amongst other things, for compulsory admission to and detention in hospital, non-consensual treatment, guardianship, and the management of a patient’s property and affairs. It also makes provision for persons involved in criminal proceedings. Other relevant statutory provision includes the Health and Personal Social Services (NI) Order 1972. This allows for state intervention in the lives of persons who appear to be at risk or to require care and attention. There is also the Children (NI) Order 1995, which permits state intervention in the lives of children with psychiatric conditions. The High Court has inherent (protective/parens patriae) jurisdiction in relation to adults who lack capacity as well as vulnerable adults with capacity; the purpose of this jurisdiction is to safeguard and promote the welfare and interests of such persons (see Re SA (Vulnerable Adult with Capacity: Marriage), 2005).

Other Relevant Law, Policy and Practice On a domestic level, pursuant to article 111 of the MHO, a code of practice has been issued to provide advice and guidance on good professional practice relating to the procedures prescribed in the Order. A failure to comply with this code is not itself unlawful but it can be cited as evidence of illegality in any dispute which might arise. The code is available at the Regulation and Quality Improvement Authority (RQIA) website: www.rqia.org.uk.

Mental Disorder

413

There are some international legal standards governing the care and treatment of persons with mental conditions. The Declaration on the Rights of Mentally Retarded Persons was proclaimed by the UN General Assembly on 20 December 1971. The Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (the Mental Health Care Principles) were adopted by the UN General Assembly on 17 December 1991 by Resolution 46/119. The UN Convention on the Rights of Persons with Disabilities was adopted on 13 December 2006 and entered into force on 3 May 2008. Whilst these international standards are not binding law in any part of the United Kingdom, it is nevertheless reasonable to expect compliance with them because they represent best international practice. In 2009 the UK ratified the UN Convention and its Optional Protocol, which allows individuals to raise matters with the UN Committee that oversees the implementation of the Convention.

Detention, Treatment and Consent Any person can, of course, be admitted to hospital or receive medical treatment if he or she consents. The law presumes that a person has mental capacity to consent to medical treatment. Whether, in law, a person lacks mental capacity is decided by considering his or her ability to comprehend and retain information relevant to a decision, to appreciate the significance of the decision and to make a considered decision on the basis of such information (Re C (Refusal of Medical Treatment), 1994; Re MB (Medical Treatment), 1997; Re B (Consent to Treatment), 2002). Voluntary patients, including in-patients, enjoy the protection of European Convention law, including all of the Article 5 safeguards against arbitrary deprivation of liberty. In De Wilde, Ooms and Versyp v Belgium (1971) the ECtHR stated that: The right to liberty is too important in a ‘democratic society’ within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention.

As a general rule, mentally competent adults of 18 years and over (ie of full age) can give or withhold consent in matters concerning their health care (section 1(1) of the Age of Majority Act (NI) 1969). However, the law is different for minors (ie persons under 18 years of age): in fact it provides separately for minors aged under 16 years and those aged 16 or 17 years. For a minor aged under 16 years, it is a question of medical judgement as to whether he or she has the mental capacity (ie sufficient understanding and intelligence) to make a given health care decision (Gillick v West Norfolk and Wisbech Area Health Authority, 1986). If such a minor is found not to have the required capacity (ie is ‘Gillick-incompetent’), a health care decision is made by the parents or a guardian of the minor and a relevant medical practitioner.

414

Michael Potter

A parental refusal for medical treatment can be overridden by a court under its parens patriae (‘parent for the nation’) jurisdiction, but only if the court considers the proposed treatment to be in the minor’s best interests. The minor’s welfare has to be the court’s paramount consideration (Re B (A Minor) (Wardship: Medical Treatment), 1981). If a minor aged under 16 years is found to have the required capacity (ie is ‘Gillick-competent’), but refuses to consent to medical care and treatment, the courts can again override the minor’s wishes on the ground that the proposed care and treatment is in his or her best interests (Re R (A Minor) (Wardship: Consent to Treatment), 1992). The Age of Majority Act (NI) 1969 authorises minors aged 16 or 17 years to consent to surgical, medical or dental treatment (section 4). But similar principles apply to these minors as those outlined above in relation to Gillick-incompetent and Gillick-competent minors aged under 16 years (Re W (A Minor) (Medical Treatment: Court’s Jurisdiction), 1993). Hence, court decisions about a minor’s mental capacity and ability to consent to treatment are premised upon a range of factors including the minor’s age, his or her current and past mental health and the level of personal development, understanding and maturity exhibited by the minor.

Compulsory Detention Persons with mental conditions can be compulsorily detained under both statute law and common law. Compulsory detention under the MHO (sometimes referred to as formal detention) comprises two stages: (1) initial admission for assessment and (2) detention for treatment.

Admission for Assessment A person with a ‘mental disorder’ can be compulsorily admitted to hospital for assessment. If he or she is living in the community, the involuntary admission to hospital can be by an approved social worker or by the nearest relative on the recommendation of a medical practitioner. Mental disorder is broadly defined as ‘mental illness, mental handicap and any other disorder or disability of mind’ (art 3(1) of the MHO). Excluded from the statutory definition of mental disorder are mental conditions caused ‘by reason only of personality disorder, promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs’ (art 3(2)). More particularly, a person can be admitted for assessment only if he or she is: — suffering from mental disorder of a nature or degree which warrants his or her detention in a hospital for assessment (or for assessment followed by medical treatment); and

Mental Disorder

415

— failing to so detain him or her would create a substantial likelihood of serious physical harm to him- or herself or to other persons (art 4(2)). The person admitted must be examined on admission by a psychiatrist. If the admission is deemed appropriate, the person can be detained for assessment for up to 14 days (art 9). Under Part IV of the MHO, he or she can be treated without consent (see below). Provision is also made under the MHO for the compulsory detention of a voluntary in-patient where, for example, he or she tries to leave hospital (art 7). This may occur in the following ways. A medical practitioner who is a hospital staff member can furnish a report to the responsible authority stating his or her opinion that an application to admit a patient for assessment is necessary. Where such an application is made successfully, the person concerned may be detained for up to 48 hours (art 7(2)). Alternatively, a mental health nurse can authorise the detention of a patient for up to six hours in circumstances where the nurse believes an assessment application is necessary but securing the immediate attendance of a medical practitioner for the purpose of furnishing a report under article 7(2) is not practicable (art 7(3)). Article 10 provides a further safeguard for persons who are discharged from hospital after being assessed as not needing to be detained for treatment. In a range of prescribed circumstances such persons are not obliged to disclose their admission and detention for assessment. They enjoy legal protection and relief against any discriminatory and detrimental treatment based on the fact that they were so admitted and detained (art 10(4)).

Detention for Treatment A patient may be detained for longer than 14 days only if his or her condition falls within the criteria contained in article 12(1) of the MHO, namely: — the patient is suffering from a mental illness or severe mental impairment of a nature or degree which warrants his or her detention in hospital for medical treatment; and — failure to detain the patient would create a substantial likelihood of serious physical harm to him- or herself or to other persons (art 12(1)(a) and (b)). A person can be initially detained for treatment for up to six months (art 12(1)) but can be further detained for a second period of up to six months (art 13(1)(a)). Thereafter a patient can be detained for periods of up to one year (art 13(1)(b) and (c)). One safeguard introduced by article 13(4) requires that, once a person has been detained for a year, the authorisation of further detention must be made by two psychiatrists, of whom one must be ‘a person who is not on the staff of the hospital in which the patient is detained and who has not given either the medical recommendation on which the application for assessment in relation to the

416

Michael Potter

patient was founded or any medical report in relation to the patient under article 9 or 12(1)’ (art 13(4)(c)).

The Mental Health Review Tribunal Any person compulsorily detained under the MHO can make an application to the Mental Health Review Tribunal (the Tribunal), challenging the lawfulness of his or her continuing detention. The Tribunal is composed of three members, namely a legal member, a medical member and a third ‘lay’ member. It normally convenes at the hospital in which the patient is being held, often in the boardroom. Its procedure is governed by the Mental Health Review Tribunal (NI) Rules 1986, which must be read in accordance with European Convention law. A detained patient has the right to representation, including legal representation, before the Tribunal. He or she will often want to consider the merits of obtaining independent psychiatric evidence, particularly if the psychiatrist in charge of his or her care is opposed to his or her discharge. Advice concerning Mental Health Review Tribunal representation can be obtained from various organisations including the Law Society, the Northern Ireland Human Rights Commission, the Northern Ireland Association for Mental Health, and the Law Centre (NI). Legal aid for advice and representation is available for representation before the Tribunal. The Law Centre (NI) currently has two solicitors dedicated to this area of practice. The Tribunal has discretion to direct the discharge of any patient (art 77(1)). In accordance with European Convention law, and following legislative amendment, the burden of proof now lies upon the detaining authority (art 77(1), as amended by the Mental Health (Amendment) (NI) Order 2004). Consequently, the Tribunal must direct the discharge of a patient if it is not satisfied that the patient’s condition fulfils the relevant criteria, namely: — the patient is then suffering from mental illness or severe mental impairment or from either of those forms of mental disorder of a nature or degree which warrants his or her detention in hospital or for medical treatment; and — the discharge of the patient would create a substantial likelihood of serious physical harm to him- or herself or to other persons (art 77(1) of the MHO). The Tribunal may also: (a) direct the discharge of a patient on a future date; (b) recommend a patient’s leave of absence or his or her transfer to another hospital or into guardianship; and (c) further consider a patient’s case if there is non-compliance with such a recommendation (art 77(2)). In 2011 the High Court of Northern Ireland issued a seminal decision on the interpretation of the statutory provisions governing detention and discharge. Recognising that ‘the liberty of the citizen has occupied an exalted position in

Mental Disorder

417

our legal system for many centuries, dating from Magna Carta’, McCloskey J confirmed that it is the role of the courts to ‘construe strictly statutory provisions purporting to interfere with the liberty of the citizen and to subject the detention of the citizen to rigorous scrutiny’ (Re JR45, 2011, para 9).

Detention under the Children (NI) Order 1995 Provision is made under the Children (NI) Order 1995 for interventions concerning children who require psychiatric care and treatment. A supervision order can be imposed where a child requires care that his or her parents are unable to provide (art 50). A court can authorise the psychiatric examination of a child subject to a supervision order if it is satisfied, on the evidence of a medical practitioner, that the child may be suffering from a mental condition which requires treatment and which is medically treatable (Sch 3, para 4). A court can also authorise the medical treatment of a child where appropriate (Sch 3, para 5).

Detention under the Health and Personal Social Services (NI) Order 1972 The Health and Personal Social Services (NI) Order 1972 makes provision for state intervention concerning persons who: (a) suffer from grave chronic disease or, being aged, infirm or physically incapacitated, are living in insanitary conditions; and (b) are unable to devote themselves, or to receive from persons with whom they reside, or from persons living nearby, proper care and attention (art 37).

Such intervention can include the non-consensual removal of such persons to other accommodation where necessary (Sch 6). A social worker may initiate proceedings to remove a person from his or her place of residence if the social worker reasonably believes that removal is necessary in the interests of the person concerned or to prevent the causing of serious nuisance or injury to a third party. The social worker must initially consult with both the general medical practitioner of the person concerned and a medical officer designated by the health authority. He or she may make a removal application based on the medical certification of the health authority’s designated medical officer that such removal is necessary. Thereafter the health authority may apply to the magistrates’ court within the jurisdiction where the person resides for an order to remove him or her to a suitable hospital or other place and for his or her detention there for up to three months. The health authority must give the

418

Michael Potter

nearest relative of the person concerned three days’ notice of its intention to apply to the court for a removal order and it must also inform the person managing the accommodation which is to receive the person that a removal hearing is to take place. At the hearing the health and welfare authority must lead evidence to substantiate its application. The court also may hear evidence from the person concerned and/or from his or her nearest known relative, and he or she has the right to be legally represented at such a hearing.

Guardianship In mental health law, guardianship is an arrangement for people aged 16 or over who suffer from mental illness or have a severe learning difficulty and who require supervision in the interests of their welfare. The appointment of a guardian and the establishment of an authoritative framework for working with a patient with a minimum of constraint is intended to help the patient live as independent a life as possible within the community. A guardianship application can be made by an approved social worker or the nearest relative (art 20). In considering how to discharge his or her statutory duties, a nearest relative is prima facie entitled to access relevant documentation, including any medical or welfare recommendations, notwithstanding the patient’s right to confidentiality or privacy (S v Plymouth City Council (C as interested Party), 2002). The application must be accompanied by two medical recommendations and a welfare recommendation (art 19(3)); an approved social worker provides the latter. To be received into guardianship, a person must meet two criteria: — he or she must be suffering from mental illness or severe mental handicap of a nature or degree which warrants his or her reception into guardianship; and — the guardianship must be necessary in the interests of the welfare of the person concerned (art 18(2)). Once appointed, the guardian has three essential powers: — to require the patient to reside at a certain place; — to require the patient to attend for medical treatment, occupation, education or training at specific times and places; and — to require access to be given at any place where the patient is residing to a doctor, approved social worker or other authorised person. Guardianship initially lasts for six months but it may be renewed for a further six months and thereafter annually. A person may be discharged by either the medical officer or the authorised social worker. The nearest relative may also discharge the person concerned from guardianship, but this power is subject to the medical

Mental Disorder

419

and/or welfare officer’s agreement (art 24(4)). Finally, a person can be discharged by a Mental Health Review Tribunal (art 77(3)). A Tribunal is required to direct the discharge of a patient if it is satisfied that the patient’s condition does not fulfil the criteria mentioned above.

Guardianship and the ‘Bournewood Gap’ A responsible authority can only restrict a person’s autonomy, including his or her right to liberty or a private life, with legal authority. Formerly, health and social care authorities often relied upon the concept of ‘common law necessity’ to legalise interventions in the lives of people with impaired capacity or with incapacity. But in HL v UK (2004), a case also known as the Bournewood case, the ECtHR ruled that common law necessity was not a lawful basis for the deprivation or restriction of liberty under Article 5 of the European Convention, because it was a vague and arbitrary power lacking in statutory safeguards. This created a gap in the law, known as the ‘Bournewood gap’. In England and Wales the government plugged this gap in 2007 by introducing legislation which authorises interventions in the lives of patients (see the Mental Incapacity Act 2005, Schedule 1A). No such legislation has been introduced in Northern Ireland, where the ‘Bournewood gap’ remains unplugged. In Northern Ireland health and social care authorities pragmatically used to rely upon guardianship to justify abrogations of autonomy, including the deprivation or restriction of liberty. The practice was upheld as lawful by the High Court in 2013, but that decision was successfully appealed in 2014. In the appeal hearing the Belfast Health and Social Care Trust accepted that the residency requirement under article 22 of the Mental Health (NI) Order 1986 did not provide the Trust with a broader power to restrict or deprive a person of his or her liberty (JMCA v The Belfast Health and Social Care Trust, 2014). Consequently, where a Trust has responsibility for a person (usually someone without mental capacity) who is not suitable for detention under mental health legislation but whose circumstances require those responsible for his or her care to have appropriate power to restrict his or her liberty, the Trust has little choice but to avail of the High Court’s inherent declaratory jurisdiction based on common law necessity.

Persons Involved in Criminal Proceedings or under Sentence The courts have power to remand to hospital a person charged with or convicted of an imprisonable offence, so that a report can be prepared on his or her mental condition (art 42). A district judge can make such a hospital remand only if satisfied that

420

Michael Potter

the individual concerned committed the offence with which he or she is charged, or if the individual has consented to the exercise of this power (art 42(2)(a)). A person detained in custody, who is charged with an imprisonable offence for which the sentence is not fixed by law, can be remanded to hospital for treatment prior to sentence as well as before or during his or her trial (art 43). The court must be satisfied on the oral evidence of a psychiatrist who has been appointed under the MHO, that the accused or convicted person is suffering from mental illness or severe mental impairment of a nature or degree which warrants his or her detention in hospital for medical treatment. In addition, a court cannot make an order remanding an accused or convicted person to hospital for treatment unless the Department of Health, Social Services and Public Safety has been given an opportunity to make representations in relation to the proposed remand. A person convicted of an imprisonable offence for which the sentence is not fixed by law can be committed to the care of the Department if: — he or she is suffering from mental illness or severe mental impairment of a nature or degree that warrants his or her detention in hospital for medical treatment; and — committal for psychiatric care and treatment is the most suitable means of dealing with his or her case (art 44). This form of sentence is known as a hospital order. A court may restrict a person’s discharge from hospital if it finds that such a course is necessary to protect the public from serious harm (art 47). The restriction order can be made with or without a time limit. A court can also place under the guardianship of a health authority, or such other person approved by a health authority, a person convicted of an imprisonable offence for which the sentence is not fixed by law (art 44). This form of sentence, known as a guardianship order, can be issued in similar circumstances to those authorising a hospital order, but one key difference is that a guardianship order can be imposed only where the offender is aged 16 or over. A person charged with a criminal offence may be found to be unfit for trial. Where such a determination is reached, the person concerned is automatically subject to an order which has the same effect as a hospital order together with a restriction order without a time limitation (art 49). Similarly, when a court directs a finding to be recorded to the effect that an accused person is not guilty of the offence charged on the ground of insanity, the person is automatically subject to an order which has the same effect as a hospital order together with a restriction order without a time limitation (art 50).

Powers of the Police Under the MHO the Police Service of Northern Ireland is charged with a number of functions relating to persons with a mental disorder.

Mental Disorder

421

Article 130: Removal of Persons found in a Public Place If a police officer finds a person in a public place who appears to him or her to be suffering from mental disorder and in ‘immediate need of care or control’, the officer may remove that person to a place of safety, ‘if he thinks it necessary to do so in the interests of that person or for the protection of other persons’ (art 130). A person so removed may be detained for 48 hours to allow him or her to be examined by a doctor and interviewed by an approved social worker and to enable any necessary arrangements to be made for his or her care or treatment. A ‘place of safety’ means any hospital which is willing temporarily to receive such a person, a police station or any other suitable place where the occupier is willing temporarily to receive such persons (art 129(7)). The police officer is obliged to inform both a responsible person residing with the person concerned and, if not the same person, the nearest relative of the person concerned, that he or she has been removed to a place of safety.

Article 129: Intervention by Warrant Article 129 provides authority for a district judge or lay magistrate, on complaint by an officer of a Board or Trust (eg a social worker) or a police officer, to issue a warrant. The warrant authorises the police, amongst other things, to enter premises, search for a patient and take custody of a patient. The MHO contemplates the issue of a warrant in three main situations: — Admission to hospital: A person can be conveyed to hospital if an application has been completed under the MHO for admission of that person to hospital for assessment. If the applicant finds that it is not reasonably practicable for him or her, or a person authorised by him or her, to fulfil this duty, he or she may request assistance from the police. If there is reasonable cause to believe that a patient is to be found on any premises, the applicant may apply for a warrant under article 129(4), which authorises a police officer accompanied by a doctor to ‘enter, if need be by force, the premises and to take and convey the patient to the hospital specified in the application’. — Re-taking of a person liable to be detained who is at large: Where an officer of a Board or Trust, or a police officer, has reasonable cause to believe that a patient who has absconded or is at large may be at any premises, a warrant may be obtained authorising a police officer accompanied by a doctor to enter the premises and remove the patient, if need be by force (art 129(2)). — Persons at risk: Where an officer of a Board or Trust or a police officer has reasonable cause to believe that a person suffering from mental disorder ‘has been or is being ill-treated, neglected or kept otherwise than under proper control or being unable to care for himself is living alone’, a warrant may be obtained to authorise a police officer, accompanied by a doctor, to

422

Michael Potter enter premises and remove the patient to a place of safety (art 129(1)). The person removed may be detained in the place of safety for up to 48 hours (art 129(5)).

Treatment The law governing medical treatment of persons with a mental condition is premised upon the concepts of autonomy and mental capacity. In the case of Schloendorff v Society of New York Hospital (1914) in the USA, Justice Cardozo stated: ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault’. In a similar vein, in the important House of Lords decision in Re F (Mental Patient: Sterilisation) (1989), Lord Goff stated: ‘I start with the fundamental principle, now long established, that every person’s body is inviolate’ (p 435G). Notwithstanding these well-recognised statements of legal principle, the MHO provides for the psychiatric treatment of persons with mental disorder, including the non-consensual treatment of competent persons. In human rights terms, Part IV of the MHO contains some of the most invasive provisions in Northern Ireland’s law. They are outlined below.

Treatment under the Common Law Every adult person enjoys the rebuttable presumption of having the mental capacity to make an informed decision about whether he or she consents to proposed medical treatment. As outlined above, the legal test for competency focuses on whether a person’s capacity is so reduced by his or her mental condition that he or she does not sufficiently understand the nature, purpose and effects of the proposed treatment (Re C (Refusal of Medical Treatment), 1994). In determining whether a person’s capacity is so reduced, Lady Justice Butler-Sloss held (in Re MB (Medical Treatment), 1997) that a patient is unable to make a decision when he or she: (a) … is unable to comprehend and retain the information which is material to the decision especially as to the likely consequences of having or not having the treatment in question; [and/or] (b) … is unable to use the information and weigh it in the balance as part of the process of arriving at the decision.

The common law permits the medical treatment of an incompetent person if such treatment is necessary to preserve the life, health or well-being of the patient concerned, and is in his or her best interests (Re F (Mental Patient: Sterilisation), 1989). Indeed medical practitioners are under a legal duty to administer treatment

Mental Disorder

423

to mentally incompetent patients where such a course is necessary to preserve the patient’s health and in the patient’s best interests. The treatment will be in the patient’s best interests only if it is carried out either to save the patient’s life or to ensure improvement or prevent deterioration in his or her physical or mental health. But such treatment cannot be administered where a legally valid ‘advance directive’ refusing medical treatment exists (Re T, 1992). Health and social care authorities must ensure that they act lawfully. Ultimately, the lawfulness of any proposed medical intervention is a matter for the courts. It is standard practice for health authorities to seek judicial approval before undertaking certain operations, particularly those involving the withdrawal of life support, sterilisation and abortion. An interested party may ask the High Court to adjudicate on the lawfulness of proposed treatment. The Official Solicitor will be appointed to represent the patient in such applications (Re F (Mental Patient: Sterilisation), 1989; Northern Health and Social Services Board v A and others, 1994; Re B (Adult: Refusal of Medical Treatment), 2002).

Psychiatric Treatment and the MHO Part IV of the MHO makes special provision for the psychiatric treatment of mental disorder. It generally applies to all patients. Articles 64 and 69 apply only to patients liable to be detained and do not apply to patients detained pursuant to article 7(2) or (3), persons detained under the police powers outlined above, persons subject to guardianship or conditionally discharged restricted patients (see art 62). As a general rule, persons who are liable to be detained under the MHO may be treated for mental disorder without their consent under the direction of the responsible medical officer, regardless of their mental competency (art 69). This supersedes the common law provisions governing treatment and consent. To mitigate this permissive statutory power, safeguards are provided for specified treatments. These are contained in articles 63, 64 and 66.

Article 63 Article 63 applies to all patients and not only to patients ‘liable to be detained’. It prohibits the performance of operations that destroy brain tissue or its functioning, or the administration of hormone implants to reduce sex drive, unless the patient consents and a second medical opinion certifies that the treatment is appropriate ‘having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient’s condition’ (art 63(2)(b)). The second medical opinion must be provided by a psychiatrist appointed by the RQIA (see page 426 below), also known as the Second Opinion Appointed Doctor (SOAD).

424

Michael Potter

Article 64 Article 64 provides for a lower level of protection for the administration of medicines and electro-convulsive therapy (ECT). Such treatment is lawful in three situations: — Where the patient consents, the treatment is lawful only if an authorised psychiatrist certifies that the patient has the mental capacity to consent and has in fact consented to the proposed treatment (art 64(3)(a)). — Where the patient is incapable of consenting, an SOAD must certify that the patient is incapable of consenting to the treatment and that the treatment should be given due to the likelihood of it ‘alleviating or preventing a deterioration of his or her condition’ (art 64(3)(b)). — Where a patient is capable of consenting but has refused to consent, an SOAD must certify that, notwithstanding the patient’s refusal to consent, the treatment should be given due to the likelihood of it ‘alleviating or preventing a deterioration of his or her condition’ (art 64(3)(b)). The SOAD must reach his or her own independent view of the desirability and propriety of the treatment pursuant to the relevant statutory criteria (R (Wilkinson) v Broadmoor RMO and others, 2002). The above safeguards apply before the administration of ECT. However, the safeguards do not become effective in relation to the administration of medicines until a detained patient has received such medicine (by any means) for a period of three months (art 64(1)(b)). This is known as ‘the three months rule’.

Article 66 Article 66 enables a patient who has consented to a treatment under articles 63 or 64 to withdraw his or her consent either before or during a course of treatment or at any point within a treatment plan. Where consent has been withdrawn, the treatment may proceed only where statutory provision for non-consensual treatment exists.

Urgent Treatment In an emergency, safeguards prescribed in articles 63 and 64 may be waived pursuant to article 68. The following treatments may then be administered without the patient’s consent or a second opinion: — surgery affecting brain tissue and the implantation of hormones to reduce sex drive may be administered to all mental patients including informal mental patients; and — ECT and medication for psychiatric purposes may be administered to patients liable to be detained subject to the article 62 exceptions listed above.

Mental Disorder

425

These safeguards may be waived where the administration of treatment is ‘immediately necessary’ for one of the following reasons: — to save the patient’s life; — to prevent a serious deterioration of the patient’s condition, as long as the treatment is not irreversible; — to alleviate serious suffering by the patient, as long as the operation is not irreversible or hazardous; or — to prevent the patient from behaving violently or being a danger to him- or herself or to others, as long as the operation is not irreversible or hazardous, and the treatment represents the minimum interference necessary. As outlined above, a patient can at any time withdraw consent to any treatment governed by articles 63 or 64. However, notwithstanding a patient’s withdrawal of consent, a treatment plan may be continued under article 68(2) if the responsible medical officer considers that ‘the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient’.

The Management of Incompetent Patients’ Property and Affairs Where a person becomes unable to look after his or her property and affairs, the law contains a number of mechanisms for substitute decision-making. Health and welfare authorities may receive and hold the money and valuables of patients living in local authority accommodation who are incapable by reason of mental disorder of managing their property or affairs (art 116). A trust is empowered to expend that money or dispose of those valuables for the benefit of the patient (art 116(3)). These authorities may not receive or hold patients’ monies or valuables exceeding in the aggregate £5,000, unless they have the permission of the RQIA (see page 426 below). The Department for Social Development can appoint an individual to receive and administer social security benefits that are payable to a person who is ‘unable for the time being to act’, in the absence of the appointment of a controller by the High Court (regs 33–34 of the Social Security (Claims and Payments) Regulations (NI) 1987). Finally, an individual can create an enduring power of attorney to give an authorised person the power to act on his or her behalf in the event of supervening mental incapacity (Enduring Powers of Attorney (NI) Order 1987). The High Court regulates enduring powers of attorney under a system of registration.

426

Michael Potter

The Appointment of a Controller The main statutory framework for intervention in matters concerning a person’s property and affairs is found at Part VIII of the MHO. Under this Part, legal responsibility for the management of a person’s property and affairs may be removed from him or her only if, ‘after considering medical evidence the court is satisfied that a person is incapable by reason of mental disorder of managing and administering his property and affairs’ (art 97(1)). Order 109 of the Rules of the Supreme Court (NI) requires an application to be made to the Office of Care and Protection (an office of the High Court) for the appointment of a controller to deal with the daily management of the patient’s financial affairs. Such an application may specify a suitable person who is willing to act as the patient’s controller, such as a relative, friend or professional adviser. The Office can direct an Officer of the Court or the Official Solicitor to make such an application if there is no suitable person to do so. Moreover, the requirement to apply in writing may be waived in urgent cases. The breadth of a controller’s powers are prescribed by the order of appointment (art 101(2)). He or she can be discharged by a court order if the patient dies, if the court is satisfied that the patient is no longer incapable or if discharge is regarded as otherwise expedient. The appointment of a controller may be bypassed by an aptly named ‘short procedure’ under Rule 5 of the Rules of the Supreme Court (NI). This is also less costly than the normal procedure. It may be used if it appears to the court that the patient’s property does not exceed £5,000, or if it is otherwise appropriate to proceed under Rule 5 and it is not necessary to appoint a controller for the patient. In such a case, the court can direct an Officer of the Court or some other suitable person to deal with the patient’s property and affairs.

The Regulation and Quality Improvement Authority The RQIA was established in 2005 as a non-departmental public body of the Department of Health, Social Services and Public Safety. It forms an important part of the legal framework introduced by the Health and Personal Social Services (Quality, Improvement and Regulation) (NI) Order 2003 to raise the quality of health and social care services. Since April 2009, the RQIA has assumed responsibility for the functions previously carried out by the Mental Health Commission for Northern Ireland (see the Health and Social Care (Reform) Act (NI) 2009, s 25).

Mental Disorder

427

The Functions of the RQIA under the MHO Under the MHO, the Authority’s statutorily defined role is ‘to keep under review the care and treatment of patients including … the exercise of the powers and the discharge of the duties conferred or imposed by this Order’ (MHO, art 86). In other words it is essentially a statutory watchdog monitoring the care and treatment of persons with mental disorder and with responsibility for ensuring the powers under the MHO are exercised lawfully and appropriately. The RQIA has a number of specific obligations under article 86 of the MHO, as follows: — to inquire into any case where it appears that there may be ill-treatment, deficiency in care or treatment, or improper detention in hospital or reception into guardianship of any patient, or where the property of any patient may, by reason of his or her mental disorder, be exposed to loss or damage; — to visit and interview detained patients in private; — to notify the relevant authority where it appears that action is necessary to prevent ill-treatment, remedy a deficiency in care or treatment, end improper detention in hospital, or prevent or redress loss or damage to property; — to provide advice to relevant authorities on matters pertaining to the MHO which have been referred to the RQIA; and — to bring matters concerning the welfare of patients to the attention of relevant authorities or people.

The Powers of the RQIA under the MHO To assist it in the discharge of its above-stated statutory duties, the RQIA has various powers conferred by article 87 of the MHO, including: — the power to refer cases to the Mental Health Review Tribunal; — the power to visit and interview patients in private; and — the power to inspect records relating to the detention and treatment of persons (but only a medical practitioner appointed for this purpose can exercise this power). In the exercise of its functions, the RQIA may advise or bring a matter to the attention of a body or person (for example, a trust which is running a private hospital, a home for people in need, a voluntary home or a nursing home). Where the Authority highlights an issue with a body or person, for example in relation to patient care, it subsequently may serve a notice requiring that body or person within a reasonable period to provide to the RQIA such information concerning the steps taken or to be taken by that body or person in relation to that case or matter as the Authority may so specify. Under article 86(6) of the MHO, the body

428

Michael Potter

or person in question is obliged to comply with the requirements set out in the notice.

Useful Contacts Law Centre (Northern Ireland) Belfast Office 124 Donegal Street Belfast BT1 2GY tel: 028 9024 4401 www.lawcentreni.org Law Centre (Northern Ireland) Western Area Office 9 Clarendon Street, Derry/Londonderry BT48 7EP tel: 028 7126 2343 www.lawcentreni.org/ Mental Health Review Tribunal for Northern Ireland Bedford House, 3rd floor 16–22 Bedford Street Belfast BT2 7FD tel: 028 9072 4843 www.courtsni.gov.uk/en-GB/Tribunals/MentalHealthReview/Pages/default.aspx Mind: The Mental Health Charity 15–19 Broadway Stratford London E15 4BQ tel: 020 8519 2122 www.mind.org.uk Northern Ireland Association for Mental Health 80 University Street Belfast BT7 1HE tel: 028 9032 8474 www.niamhwellbeing.org Northern Ireland Human Rights Commission Temple Court 39 North Street Belfast BT1 1NA tel: 028 9024 3987 www.nihrc.org

Mental Disorder Office of Care and Protection Royal Courts of Justice Chichester Street Belfast BT1 3JF tel: 028 9023 5111 Regulation and Quality Improvement Authority Riverside Tower, 9th floor 5 Lanyon Place Belfast BT1 3BT tel: 028 9051 7500 fax: 028 9051 7501 email:[email protected] www.rqia.org.uk The RQIA also has an office in Omagh: Regulation and Quality Improvement Authority Hilltop Tyrone and Fermanagh Hospital Omagh BT79 0NS tel: 028 8224 5828 Rethink (formerly the National Schizophrenic Fellowship) Knockbracken Health Care Park Saintfield Road Belfast BT8 8BH tel: 028 9040 2323 www.rethink.org

429

20 Family and Sexual Matters MONICA MCWILLIAMS, RHYANNON BLYTHE AND HANNAH RUSSELL

This chapter considers family and sexual matters in Northern Ireland. It outlines how human rights in the context of family life, domestic violence, termination of pregnancy, sexual offences, human trafficking, sexual orientation and prisoners’ access to family are dealt with in Northern Ireland’s legal system. It draws primarily from domestic legislation and case law. In addition, due to the enactment of the Human Rights Act 1998, which has given the European Convention on Human Rights (ECHR) direct effect in Northern Ireland’s law, reference to ECHR rights is also frequent. The main ECHR provisions relating to family and sexual matters are Articles 8 and 12. These set out the minimum standards that are imposed upon the UK, including Northern Ireland. They state: Article 8 (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 12 Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Article 6(1) of the ECHR, which deals with the right to a fair trial, may also be important in terms of the procedure used to make family law decisions. It states: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent

432

Monica McWilliams, Rhyannon Blythe and Hannah Russell

strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Family Life Protection of the integrity of the family is at the heart of the right to respect for family life, as guaranteed by Article 8 of the ECHR. Some of the factors which will be considered when deciding whether Article 8 has been engaged include the length of the relationship and whether there are children involved. Article 8 awards particular protection to the ‘inner circle’ (Niemetz v Germany, 1992) and to ‘family ties’ (Keegan v Ireland, 1994). Relationships recognised as falling within the scope of Article 8’s respect for family life include: — a husband and wife, and children who are dependent upon them, including illegitimate and adopted children (B v UK, 1988); — brothers and sisters, and relationships between parents and children (Moustaquim v Belgium, 1991; X, Y and Z v UK, 1997); — civil partners (Civil Partnership Act 2004); — parties living together outside of marriage, and their children (Johnston v UK, 1987); — parties who have children together, but who are not living together at the time of their birth (Berrehab v The Netherlands, 1989); — an unmarried father and his child, even if the father has not lived with the mother or had a great deal of contact with the child (Soderback v Sweden, 1998); — a foster parent and a fostered child (Frette v France, 2002); — adoptive parents and the adopted child, even where there has been little contact with the adopted child and where the adoption is contested (Pini v Romania, 2005); and — in certain circumstances a child’s relationship with his or her grandparents (Vermeire v Belgium, 1993). Relationships which are too remote to constitute family life may still be protected under the right to respect for private life contained in Article 8. These include: — the relationship between a prisoner and his fiancée (Wakeford v UK, 1990); — the relationship between same-sex couples who are not civil partners (X v UK, 1986); and — the relationship between adult children and their parents. The right to family life under Article 8 does not extend to protect the creation of a family nor does it require the state to enable a parent to look after a child at home through the provision of assistance (Andersson and Kullman v Sweden, 1986).

Family and Sexual Matters

433

The Right to Marry The right to marry is provided for by Article 12 of the ECHR. The right is limited in the sense that it is expressly subject to domestic laws relating to age, the gender of the participants or other matters. In Rees v UK (1987) the European Court of Human Rights (ECtHR) held that any such limitations ‘must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired’. The ECtHR has not extended the protection of Article 12 to include same-sex marriages, leaving this to individual states (Schalk and Kopf v Austria, 2010). But recently it has held that if a state enacts civil partnership legislation for opposite-sex couples it must also do so for same-sex couples if it is to avoid a violation of Article 8 of the ECHR (Vallianatos v Greece, 2013). Marriage law in Northern Ireland is founded on the historical definition set out in Hyde v Hyde (1866), which describes marriage as ‘the voluntary union for life of one man to one woman to the exclusion of all others’. This is further reinforced by the Matrimonial Causes (NI) Order 1978, which states that a marriage is void unless the two parties involved are male and female. While same sex marriage has been introduced in England and Wales by the Marriage (Same Sex Couples) Act 2013 and in Scotland by the Marriage and Civil Partnership (Scotland) Act 2014, there are no plans to introduce the same changes to Northern Ireland. Same sex marriages which are entered into in England and Wales or Scotland will be recognised as civil partnerships in Northern Ireland. The law also requires that the participants in a marriage be at least 16 years of age (Age of Marriage Act (NI) 1951), although those under the age of 18 still require the consent of a parent or of a court (Marriage (NI) Order 2003). It has been held by the ECtHR that the obligation to respect the domestic law, which imposes a minimum age of marriage, does not deny the right to marriage, even in situations where the religion of the parties permits a younger age (Khan v UK, 1986). The Matrimonial Causes (NI) Order 1978 further requires that the parties to a marriage must not be within the ‘prohibited degrees of relationship’. These relationships of consanguinity and affinity are set out in detail in article 18 of the Family Law (Miscellaneous Provisions) (NI) Order 1984, as amended, and have the effect of rendering a marriage between people in those relationships void. A further impediment to marriage is that neither of the parties can already be lawfully married. Bigamy is a criminal offence in Northern Ireland punishable by up to seven years in prison (s 57 of the Offences against the Person Act 1861). Marriage must be based on free consent and the Forced Marriages (Civil Protections) Act 2007 aims to protect against coercion. The Act provides for a ‘forced marriage protection order’, which may be granted without a hearing, to prevent a person being married against their will or being taken abroad to do so. Contravention of such an order is a criminal offence. This measure is less intrusive than placing a young person in wardship, which was formerly often used to

434

Monica McWilliams, Rhyannon Blythe and Hannah Russell

protect vulnerable children from forced marriages (Re G and D (Risk of Forced Marriage: Forced Marriage Protection Order), 2010).

Sham Marriages Marriages of convenience, or ‘sham’ marriages, are designed to exploit marriage laws, often for financial gain or to obtain a certain immigration status. The definition of a sham marriage under EC Council Resolution 97/C382/01 is: a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State.

The UK system designed to prevent sham marriages was the Certificate of Approval scheme, which required migrants subject to immigration control to obtain a certificate of approval from the UK Border Agency prior to being able to marry within the Anglican Church. This initially required a fee, but this requirement was suspended in April 2009 as a consequence of the challenge brought in Baiai v Secretary of State for the Home Department, 2008. The scheme was also criticised by the ECtHR in a case brought from Northern Ireland, O’Donoghue v UK (2010). The Court declared it to be incompatible with Article 14 of the ECHR (the non-discrimination provision), read in conjunction with Article 12. As a result of this ruling the whole scheme was suspended while the government prepared a remedial order under the Human Rights Act 1998 to remedy the incompatibility. The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2011 came into force on 9 May 2011. Foreign nationals are still required to give notice to a designated register office prior to their marriage taking place.

Breakdown: Separation and Divorce Separation When a marriage comes to an end there are a number of options available. Separation can be arranged informally or with a separation agreement which outlines the arrangements for the children of the family, the matrimonial property and the finances of the family. This may include the need for maintenance to be paid by one of the spouses in favour of the other. Parties to a marriage may also apply for a formal decree of judicial separation, which is often sought where there is a moral or religious objection to divorce.

Family and Sexual Matters

435

The decree can be based on similar grounds to those available for divorce and has the effect of no longer requiring the parties to live together. But the decree does not dissolve the marriage or permit either party to enter into a subsequent marriage. Furthermore, it does not prevent either party petitioning for divorce at a later stage.

Divorce The ECtHR has found that Article 12 does not extend to the right to have a marriage dissolved (Johnson v Ireland, 1968), although, of course, the Court accepts that divorce is allowed in nearly all states. In F v Switzerland (1987) the ECtHR distinguished the right to remarry from the situation in Johnston, holding that if divorce is provided for under national law then the right of divorced persons to remarry is protected by Article 12. The Matrimonial Causes (NI) Order 1978 governs the law on divorce in Northern Ireland. Under that Order a party to a marriage which has lasted for at least two years may petition for divorce if he or she can show that the marriage has broken down irretrievably. This can be demonstrated by one or more of five grounds: — the respondent has committed adultery; — the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; — the respondent has deserted the petitioner for a period of at least two years; — the parties to the marriage have lived apart for a continuous period of at least two years and the respondent consents to the divorce; or — the parties to the marriage have lived apart for a continuous period of at least five years. Where irretrievable breakdown is shown to the satisfaction of the court, a ‘decree nisi’ will be granted. The petitioner may apply for the final ‘decree absolute’ once the financial elements of the divorce have been completed, and no sooner than six weeks after the decree nisi.

Financial Provision Co-habitees There is no specific law in Northern Ireland which covers financial provision for co-habitees when a relationship between them breaks down. The rights of couples in this situation are determined by the complex principles of property law.

436

Monica McWilliams, Rhyannon Blythe and Hannah Russell

Spouses The Matrimonial Causes (NI) Order 1978 allows for a number of claims for financial provision which can be categorised as financial provision orders, property adjustment orders and pension sharing orders. Where there is a petition for divorce a court may award ‘maintenance pending suit’ in advance of the divorce hearing. This is the only order which can be made prior to a divorce being granted. After the decree nisi has been granted the court’s powers with respect to financial provision are greater. It has the power to award periodic payments or a lump sum to a spouse, or indeed for the benefit of a child of the family. Any financial settlement between spouses will also deal with property issues, which usually involve the marital home but also any other property and shares. A court can order a transfer of the property or adjust the proportion of ‘equity’ (ie interest) each spouse holds. Powers also extend to ordering the sale of the property or restricting disposal until a child of the family has attained the age of 18. The final aspect of financial provision is the division of pensions, which can occur in a number of ways. A ‘pension sharing order’ provides for the transfer of a proportion of the ‘cash equivalent transfer value’ of a pension between the spouses while a ‘pension attachment order’provides for the payment of a lump sum or periodic payment to a spouse. Under the Matrimonial Causes (NI) Order 1978, in the exercise of its powers a court must have regard to the matters listed under article 27. Primarily, regard must be had to the welfare of any minor children of the family, which involves consideration of their financial needs, their own financial resources, any physical or mental disability and the manner of their education. As regards the parties to the marriage the court will consider: their income and earning capacity and their respective needs and financial obligations; their standard of living and age; any disability; any contribution they have made to the welfare of the family; their conduct; and any financial benefit which they may lose as a result of the divorce.

Issues Relating to Children The Children (NI) Order 1995 governs matters relating to the welfare of children such as residence and contact, child protection, and the position of children who are in care or ‘looked after’. In Northern Ireland it is presumed that a man is the father of a child where he was married to the child’s mother between the child’s conception and birth (Family Law Act (NI) 2001, s 2(1)(a)). The same presumption applies where a man has been registered on the child’s birth certificate (s 2(1)(b)). Where the parentage of a child is in doubt, the courts have the power to direct a test of

Family and Sexual Matters

437

parentage to be taken. This was confirmed by the ECtHR in Kalacheva v Russia (2009) although the Court’s analysis of the matter was that the establishment of paternity should be dealt with under Article 8 of the ECHR (the right to private and family life). Parental responsibility is automatic for the mother of a child and for the father where the parents are married. For unmarried fathers, parental responsibility can be acquired by being registered as the father, by a parental responsibility order being granted by a court, or by a parental responsibility agreement being entered into with the mother. A step-parent may also make an application for parental responsibility under the Family Law (NI) Act 2001 (s 1(3)). A Health and Social Care Trust will gain parental responsibility where a care order is in force, but this does not extinguish the rights of those persons who already have responsibility for the child. A Family Proceedings Court (which is a branch of the magistrates’ courts) can make a number of orders in respect of a child under article 8 of the Children (NI) Order 1995. These are: — A ‘residence order’, which determines the arrangements for where a child will live. Such an order can be made in respect of one or more persons, who need not live together. — A ‘contact order’, which requires the parent who has residence to allow contact between the child and another person. Defined contact orders are often sought which detail the precise arrangements for the named children. The court also has the power to make a ‘no contact’ order, but this will be issued only in exceptional circumstances and otherwise may not be justifiable under Article 8 of the ECHR (Görgülü v Germany, 2004). Children are entitled to maintain contact with both parents under Article 9 of the UN Convention on the Rights of the Child 1989 and, although this is not enforceable domestically, it is often used as a supporting argument in court decisions. — A ‘specific issue order’, which gives directions for determining a specific question that has arisen in connection with parental responsibility. Examples of situations where such an order is used are decisions with respect to medical treatment or schooling. — A ‘prohibited steps order’, which prevents a parent from exercising his or her parental responsibility in a manner prohibited by the order without the consent of the court. These orders usually deal with issues such as a name change or removing the child from the country. In granting the above orders the welfare of the child is paramount and the court must have regard to the ‘welfare checklist’ in article 3 of the Children (NI) Order 1995. It is also important to note that such orders can be made only in respect of a child under the age of 16, unless there are exceptional circumstances. The financial support of children is dealt with by the Child Maintenance and Enforcement Division (formerly the Northern Ireland Child Support Agency), acting under the Child Support (NI) Orders 1991 and 1995. The Division

438

Monica McWilliams, Rhyannon Blythe and Hannah Russell

assesses and recovers payments of child maintenance from an absent parent. Failure to pay child maintenance will lead to legal action in the form of an application to the court for a ‘liability order’, which will allow for the recovery of the unpaid sum. In the course of divorce proceedings, the court has a duty towards any children of the family. A statement of arrangements must be provided in respect of any minor children and the court must be satisfied with these arrangements prior to the granting of the decree nisi. The court retains jurisdiction to exercise its powers under the Children (NI) Order 1995 and may do so if it is not satisfied with the proposed arrangements in respect of the children.

Adoption Article 12 of the ECHR does not include a right to adopt or a right to create a family (X v Belgium and Netherlands, 1974), but the ECtHR has held that the relationship between adoptive parents and their child does fall within the scope of Article 8 (X v France, 1986; Pini v Romania, 2005). Adoption law in Northern Ireland is governed primarily by the Adoption (NI) Order 1987. The Order’s provisions in respect of unmarried couples and civil partners have recently been interpreted by the courts. In 2011 the Northern Ireland Human Rights Commission brought judicial review proceedings against the Department of Health, Social Services and Public Safety on the compatibility of the Adoption (NI) Order 1987 with Articles 8 and 14 of the ECHR. The Order permitted only married couples or individuals to apply to adopt a child, thus excluding unmarried couples, whether same sex or opposite sex, and civil partners. The High Court ruled that preventing couples who are not married or in a civil partnership, from applying to adopt a child was discriminatory and that all individuals and couples, regardless of marriage status or sexual orientation, should be eligible to be considered as adoptive parents, and this ruling was confirmed by the Court of Appeal (Re Northern Ireland Human Rights Commission’s Application, 2013). The UN Convention on the Rights of the Child requires the welfare of the child to be a paramount consideration in any decision concerning a child and this principle is reflected in the Adoption (NI) Order 1987. There are certain limits in place to ensure that the best interests of the child are served, namely: — adopters must be over 21 years of age, or 18 if one of the couple is the birth parent; — adopters must have the finances and space to adequately support the child; — health and well-being play a part in the assessment process, but an individual will not be automatically disqualified for being disabled, a smoker, overweight or having a medical condition; and

Family and Sexual Matters

439

— a criminal record will not automatically disqualify an individual from adopting, but the law prohibits anyone from adopting or fostering if they, or a member of their household, has been convicted or cautioned for offences against a child. When making a decision on whether to permit an adoption the court will consider the safety and welfare of the child, the stability of the family, and the wishes and feelings of the child, in accordance with his or her age and maturity. Unless the mother is deemed unfit by a court order, her consent is required for an adoption to take place. The consent of the unmarried father of a child is not required, which raises issues under Articles 6 and 8 of the ECHR. In Keegan v Ireland (1994) it was held that, where the father wished to have a say, proceeding with an adoption without his knowledge or consent violated those Articles. The child’s consent is not required, although this too may breach Articles 6 and 8 if the child is old enough to participate and provide his or her views on the adoption decision. The participation of the parents in the process itself is also important, the ECtHR finding a violation of Article 6 in the case of P, C and S v UK (2002) where the mother did not have access to the court. Once an adoption is finalised the adoptive parents will automatically obtain parental responsibility for the child. With regard to international adoptions, the Adoption (Intercountry Aspects) Act (NI) 2001 gives effect to the international standards under the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption 1995.

Domestic Violence The Domestic Proceedings (NI) Order 1980, as amended by the Family Homes and Domestic Violence (NI) Order 1998, empowers the court to grant orders to protect persons suffering from domestic violence. The orders at the disposal of the court are: — ‘occupation orders’ (art 11 of the 1998 Order), which permit the court to prohibit a person from occupying or entering the home itself or the vicinity. — ‘non-molestation orders’ (art 20 of the 1998 Order), which prohibit a person from using or threatening violence against the applicant and from instructing, encouraging or in any way suggesting that another person should do so; the respondent is also forbidden to intimidate, harass or pester the applicant or to encourage anyone else to do so. Occupation orders and non-molestation orders are available to spouses, co-habitees and ‘associated persons’ (persons who ‘live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder’). The orders may be made ‘ex parte’ (ie without the

440

Monica McWilliams, Rhyannon Blythe and Hannah Russell

respondent being told), thereby enabling the application to be made in an emergency or where there is a risk that the respondent may attempt to prevent an application being made. The application will subsequently be listed for a full ‘inter partes’ hearing so that the respondent may enter a defence. Legal aid for applications related to domestic violence has recently been extended to those in waged employment. If the respondent contravenes a court order, he or she commits an offence under article 25 of the Family Homes and Domestic Violence (NI) Order 1998 and can be punished with up to six months’ imprisonment. Contravention of the Order is also an arrestable offence. The ECtHR has ruled that a state can be held accountable for failing to investigate reports of domestic violence and failing to provide enough protection for victims (Opuz v Turkey, 2009). In 2004, the Violence, Crime and Victims Act was enacted to provide police with greater powers of arrest, to focus more attention on perpetrators and to provide better protection for victims. The Act is complemented by the Law Reform (Miscellaneous Provisions) (NI) Order 2005, which gives added protection to victims of domestic violence, takes into account human rights issues and increases the criminal penalties for breaching protective civil orders. Furthermore, UK homicide laws have changed with the aim of protecting female victims of domestic violence, although the new provisions are not gender specific. In 2010 the partial defence of provocation was abolished (Coroners and Justice Act 2009, s 56) and replaced by the new partial defence of loss of control (Coroners and Justice Act 2009, s 54). The new defence removes the requirement for the loss of control to be sudden, which was required by the defence of provocation. For the loss of control defence to be engaged there are three requirements that must be satisfied—it must be established that the defendant lost self-control, there must be a qualifying trigger and ‘a person of [the defendant’s] sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of [the defendant], might have reacted in the same or in a similar way to [the defendant]’ (s 54(1); see also R v Camplin (1978); Attorney General for Jersey v Holley (2005). The qualifying triggers are defined as constituting ‘circumstances of an extremely grave character’ and/or causing the defendant ‘to have a justifiable sense of being seriously wronged’ (s 55(4)). In deciding whether a qualifying trigger has been engaged the judiciary is to disregard the defendant’s ‘fear of serious violence’ and ‘sense of being seriously wronged’ if the defendant ‘incited [it] to be done or said for the purpose of providing an excuse to use violence’ (s 55(6)). The defendant’s ‘sexual infidelity’ is also to be disregarded (s 55(6)).

Domestic Violence and Children The ECtHR, in considering the physical punishment of children in the case of A v UK (1998), did not view the defence of reasonable chastisement to be sufficient to prevent a breach of Article 3 of the ECHR (the right not to be tortured

Family and Sexual Matters

441

or subjected to inhuman or degrading treatment or punishment). In order to amount to inhuman or degrading treatment or punishment the action must reach a minimum level of severity, and such an assessment will take into consideration factors such as the duration of the treatment, the physical or mental effects on the victim and the sex, age and state of health of the victim (Ireland v UK, 1978). The ECtHR has also found violations of Article 3 where the state has failed to protect children from long-term sexual abuse (E v UK, 2002) or neglect (Z v UK, 2001). Where an allegation is made that a breach of Article 3 has occurred, the state is required to conduct an effective, official investigation. The UN Convention on the Rights of the Child and the UN Convention Against Torture both protect children from torture, inhuman and degrading treatment, also requiring that prompt and impartial investigations are carried out into allegations. Where the state has to intervene in the family life of a child, by virtue of violence or neglect, any decisions made by a Health and Social Care Trust or a court must be in accordance with the best interests of the child. The procedures for making such decisions must be compliant with the fair trial obligations of Article 6 of the ECHR. The participation of the child in any decision is an important factor under Article 12(1) of the UN Convention on the Rights of the Child. The views of the child must be given due consideration in line with his or her age and maturity.

Termination of Pregnancy Medical termination of pregnancy was legalised in Great Britain by the Abortion Act 1967. This Act does not extend to Northern Ireland. Northern Ireland’s position continues to be governed by sections 58 and 59 of the Offences against the Person Act 1861 and by section 25 of the Criminal Justice Act (NI) 1945. Medical termination of pregnancy is legal in Northern Ireland only in exceptional circumstances, where the life of the mother is at imminent risk and where there is a long-term or permanent risk to the mother’s physical or mental health. In 2012 the first private clinic to offer terminations was opened in Northern Ireland. Prior to this, terminations in Northern Ireland were carried out only by the National Health Service. An example of a situation where termination of pregnancy would be permitted in Northern Ireland is provided by the case in England of a 14-year-old girl who was gang-raped by a group of soldiers and fell pregnant. The courts ruled that forcing her to continue with her pregnancy would have threatened her mental health (R v Bourne, 1938). A ‘lawful’ termination can therefore be carried out if the woman would otherwise be a ‘physical and mental wreck’ or if there is a risk to the life of the woman if the pregnancy were to continue. However, a woman in Northern Ireland cannot obtain a termination of pregnancy on the grounds of rape alone. In December 2013, the Justice Minister announced consultation on changing Northern Ireland’s termination of pregnancy laws to

442

Monica McWilliams, Rhyannon Blythe and Hannah Russell

allow pregnant women carrying babies with fatal foetal abnormalities to have a termination, as well as on changes to the current position on terminations in the case of rape or incest. The ECtHR has reaffirmed that states have a broad margin of appreciation where termination of pregnancy is concerned. It has clarified that Article 8 of the ECHR does not provide for a right to a termination, but it has emphasised that, where the right does exist in a state, guidelines concerning the termination of pregnancy must be made clear (A, B and C v Ireland, 2010). In 2004 the Court of Appeal of Northern Ireland confirmed that the Department of Health had a statutory duty to provide guidelines on the termination of pregnancy (Family Planning Association of NI v Minister of Health, Social Services and Public Safety, 2004). Further guidelines issued in 2011 continue to be debated. Under section 1 of the Abortion Act 1967 a medical termination of pregnancy is permitted in Great Britain where the pregnancy poses a risk to the physical or mental health of the pregnant woman or any existing children of her family, or where there is a substantial risk that if the child were born ‘it would suffer from such physical or mental abnormalities as to be seriously handicapped’. The Human Fertilisation and Embryology Act 1990 lowered the legal time limit for terminations in Great Britain from 28 to 24 weeks and it clarified the circumstances under which a termination could be obtained at a later stage. Cases based on Article 10 of the ECHR (the right to freedom of expression) have indicated that state authorities should not restrict the provision of information to women on how to travel elsewhere to obtain a termination (Open Door and Dublin Well Woman v Ireland, 1992). The Court has also ruled that prosecuting an individual who was campaigning against terminations for distributing leaflets prior to a general election was a violation of the campaigner’s right to freedom of expression (Bowman v UK, 1998).

Sexual Offences The main legislation in Northern Ireland governing sexual offences is the Sexual Offences (NI) Order 2008. It replaced the legislation stemming from the Victorian era (the Offences against the Person Act 1861, the Criminal Law Amendment Act 1885 and the Vagrancy Act 1898). Amendments have also been made by the Sexual Offences (NI) Order 1978, the Homosexual Offences (NI) Order 1982 and the Criminal Justice (NI) Order 2003. The Criminal Justice (NI) Order 2003 abolished the presumption that a boy under the age of 14 cannot engage in sexual activity. The Sexual Offences (NI) Order 2008 criminalises any sexual activity by anyone with a person who is under the age of 13 (arts 12–15) and sexual activity by anyone with a person whom he or she does not reasonably believe to be 16 or older and who in fact is younger than 16 (arts 16–21). Meeting a child following sexual grooming is an offence under

Family and Sexual Matters

443

article 22 of the 2008 Order and there are special provisions criminalising sexual activity with children by persons who are in a position of trust towards them (arts 23–29). A person can consent to sexual activity when he or she reaches the age of 16. While it is not an offence for a girl to have sexual intercourse under the age of 16, and while it is possible for such a girl to obtain contraception if she understands the treatment being given to her, a male having sexual intercourse with her will be acting unlawfully unless he reasonably believes her to be 16 or older.

Rape and Other Serious Sexual Offences Rape is defined as ‘any act of non-consensual intercourse by a man with a person’ (Criminal Justice (NI) Order 2003, art 18) and is committed where A intentionally penetrates the vagina, anus or mouth of B with his penis, B does not consent to the penetration, and A does not reasonably believe that B consents (Sexual Offences (NI) Order 2008, art 5). The victim can be a male or female. A House of Lords decision in 1991 held that a wife cannot always be presumed to have consented to sexual intercourse with her husband (R v R), and legislation has since confirmed this. The perpetrator of rape can only be male, but women can be convicted of conspiring to commit rape, inciting rape or ‘assault by penetration’ (Sexual Offences (NI) Order 2008, art 6). The maximum penalty for rape (or incitement to rape etc) is life imprisonment, but the courts in Northern Ireland tend to follow the Sentencing Guidelines in England and Wales, which suggest a starting point of five years for an offence where there are no aggravating features and eight years where there are aggravating features. The starting point for attempted rape is seven years (Attorney General’s Reference No 2 of 2004, 2005). The Court of Appeal of Northern Ireland has suggested that the minimum sentence for rape should be seven years where the case is contested (R v McDonald, 1989). It has been established that legislation that interferes with consensual sexual behaviour between individuals is incompatible with Article 8 of the European Convention on Human Rights (Re McR’s Application for Judicial Review, 2002). As a result, the Sexual Offences (NI) Order 2008 deals with the issue of consent and differentiates between consensual and non-consensual sexual activity.

Sex Offenders Register Part 2 of the Sexual Offences Act 2003 provides for notification orders, otherwise known as the Sex Offenders Register. The aim of these orders is to protect the public. Individuals who have been convicted or cautioned in respect of sex offences, or found not guilty by reason of insanity, can be subject to such orders. They extend to persons who aid and abet, or procure another to commit, a sexual

444

Monica McWilliams, Rhyannon Blythe and Hannah Russell

offence. Those subject to such orders are required to notify the police of their name, home address, date of birth, national insurance and passport details. The notification order can stretch from two years to indefinitely, depending on the sentence received or action taken against the recipient.

Incest Articles 32 and 33 of the Sex Offences (NI) Order 2008 prohibit sexual activity with a family member under the age of 18 (or inciting a family member to engage in such sexual activity). The maximum penalty for these offences is 14 years’ imprisonment but it decreases to five years if the defendant is also under the age of 18.

Indecency Offences The Sexual Offences (NI) Order 2008 creates various indecency offences. For example, indecent exposure is an offence under article 70, article 71 criminalises voyeurism, and article 75 deals with sexual activity in a public lavatory. The offence of committing gross indecency with a child under the age of 14 is governed by section 22 of the Children and Young Persons Act (NI) 1968. In addition, indecent behaviour in a public place is an offence under section 9(1) of the Criminal Justice (Miscellaneous Provisions) Act (NI) 1968.

Prostitution and Pornography Buying the sexual services of an adult is legal across the UK, including Northern Ireland. However, a person who pays for the sexual services of a prostitute who is, or has been, subjected to force has committed a crime in Northern Ireland (Sexual Offences (NI) Order 2008, art 64A; Policing and Crime Act 2009, s 15). Paying for the sexual services of a child is illegal under section 47 of the Sexual Offences Act 2003. Section 6 of the Human Trafficking and Exploitation (Further Provisions and Support of Victims) Bill 2013 proposes criminalising paying for the sexual services of a person in all circumstances in Northern Ireland. At the time of writing this Bill had reached the Committee Stage in the Northern Ireland Assembly. Selling the sexual services of an adult is also legal across the UK. However, it is a crime to solicit the services of a prostitute (eg by kerb-crawling, running a brothel or pimping) (Sexual Offences (NI) Order 2008, arts 60–64; Policing and Crime Act 2009, s 20). It is also illegal to cause, incite, control, arrange or facilitate child prostitution or pornography (Sexual Offences Act 2003, ss 52–53A).

Family and Sexual Matters

445

It is an offence to be in possession of ‘extreme pornographic images’ (Criminal Justice and Immigration Act 2008, s 63). The Protection of Children (NI) Order 1978 and section 70 of the Criminal Justice and Immigration Act 2008 also provide special provisions to deal with indecent images of children. Classification of pornographic video recordings is regulated by the Video Recordings Acts 1984 and 2010.

Human Trafficking Human trafficking is defined as the movement of a person with deception or coercion into a situation of forced labour, servitude or slavery-like practice (Article 3(a) of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons 2000). In Northern Ireland it is classified as a crime under sections 57–59 of the Sexual Offences Act 2003, section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, and section 66 of the Sexual Offences (NI) Order 2008. Section 58 of the Sexual Offences Act 2003 and section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, as amended by sections 6 and 7 of the Criminal Justice Act (NI) Act 2013, also make it an offence to traffic people outside the UK (including Northern Ireland) for the purposes of exploitation. The UK has ratified the 2011 EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, which demands a more proactive and victim-centred approach to tackling human trafficking. However, as at August 2014 changes to bring the UK into line with the non-mandatory provisions of this Directive have been minimal. The Human Trafficking and Exploitation (Further Provisions and Support of Victims) Bill 2013 (see above) claims to provide Northern Ireland with a more robust legal framework in relation to the prosecution of traffickers and those subjecting people in Northern Ireland to conditions of slavery, the provision of improved support for the victims of trafficking, and tackling the demand of trafficking. The Bill is currently receiving a mixed reception. The Northern Ireland courts delivered their first human trafficking convictions in 2012 (R v Matyas Pis; R v Rong Chen). The English courts have also set precedents for compensating victims. In AT v Dulghieru (2009) an English court awarded aggravated damages to women who were trafficked into Northern Ireland. It took into account the length of their ordeal and the extent of identified ongoing post-traumatic stress.

Sexual Orientation Law in the UK concerning lesbian, gay, bisexual and transgender (LGBT) rights has experienced a gradual turnaround since the 1980s. Dudgeon v UK (1982)

446

Monica McWilliams, Rhyannon Blythe and Hannah Russell

challenged the nineteenth-century legislation which criminalised homosexual acts taking place in public or in private, whatever the age or relationship of the participants involved, and whether or not the participants consented. The ECtHR ruled that there was no ‘pressing social need’ and thus no ‘sufficient justification’ to criminalise such acts. Consequently, the domestic legislation was amended. Under the Homosexual Offences (NI) Order 1982 a man over the age of 20 was allowed to conduct consensual homosexual acts in private. The Criminal Justice and Public Order Act 1994 reduced the age of consent for such acts to 18 and the Sexual Offences (Amendment) Act 2000 reduced it further to 17. By the Sexual Offences (NI) Order 2008 the age of consent for homosexual practices was brought down to 16 in Northern Ireland, as it is in the rest of the UK. Homosexual sadomasochist acts conducted in private between consenting adults are still unlawful in the sense that they can give rise to prosecution for assault. The European Court has found the prohibition to be ‘necessary in a democratic society … for the protection of health and morals’ (Laskey, Jaggard and Brown v UK, 1997; ADT v UK, 2000). For more information on discrimination based on sexual orientation see Chapter 17.

Transgender Issues The Gender Recognition Act 2004, which applies throughout the UK, introduced the right to change one’s legal gender. It was enacted following the ruling by the ECtHR in Goodwin v UK (2002), where the UK’s failure to recognise the applicant’s new gender was held to be a violation of Articles 8 and 12 of the ECHR. The House of Lords had already ruled in Bellinger v Bellinger (2000) that the legislative requirement that parties to a marriage be of different genders as determined at the time of the birth was incompatible with the ECHR. Transgender people are now permitted to apply for a gender recognition certificate, which also makes provision for a new birth certificate. If an individual applies for a gender recognition certificate after marriage they will have to end their marriage, as it is still against the law to be married to someone of the same sex (Marriage (NI) Order 2003). To retain their legal rights, the couple are required to register a civil partnership, which was introduced to Northern Ireland in 2005 (Civil Partnership Act 2004). The family rights of transgender people in Northern Ireland are decided on the individual facts of the case, balancing those rights against the best interests of any children involved. Transgender operations are provided by the National Health Service for people with gender dysphoria. There are a number of stages and requirements which must be satisfied before an individual can obtain such treatment free of charge. Decisions are made by the Gender Recognition Panel and on average the process takes four to five years if conducted through the NHS and three to four years if conducted privately. The ECtHR has noted that individual circumstances should

Family and Sexual Matters

447

be taken into account, so in certain circumstances a very long waiting period could amount to a violation of Article 8 of the ECHR (Schlumpf v Switzerland, 2009). The Sex Discrimination (Gender Reassignment) Regulations (NI) 1999 prevent discrimination on the grounds of gender reassignment in any aspect of employment. This includes pay and training.

Fertility Treatment and Surrogacy The Human Fertilisation and Embryology Act 2008 provides equal access to the donation of sperm, eggs and embryos and to surrogate pregnancy for couples and individuals. This includes allowing couples, regardless of their marital status or sexual orientation, to be named as parents on the birth certificate. The Human Fertilisation and Embryology Authority’s code of practice sets out regulatory principles and guidance on the use, storage and research of sperm, eggs and embryos for the whole of the UK. In relation to fertility treatment, up to six cycles of in vitro fertilisation (IVF) are available on the NHS if certain criteria are met, although availability and criteria vary depending on the demand in the different health trusts. The ECtHR has opted to categorise the issue under Articles 2, 8 and 14 of the ECHR, as opposed to Article 12 (Evans v UK, 2007; Dickson v UK, 2007; SH v Austria, 2010). The Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004 removed anonymity from egg, sperm and embryo donors. Under this legislation any child conceived through donation after 1 April 2005 can apply to the Human Fertilisation and Embryology Authority, on reaching the age of 18, for access to a range of information, including the identity of the sperm, egg or embryo donor.

Immigrants, Refugees and Asylum Seekers The UK is under an obligation to ensure that the Article 8 right of asylum applicants are adequately protected (see, eg Article 37(c) of the UN Convention on the Rights of the Child 1989 and Council Directive 2003/9/EC). Section 55 of the Borders, Citizenship and Immigration Act 2009 imposes a requirement on UK Visas and Immigration to safeguard and promote the welfare of the child in the UK when carrying out its existing functions. State authorities have a duty to ensure that those who fall within the remit of the 2009 Act experience: — fair treatment which meets the same standard a child with British or Irish citizenship would receive; — consideration for the best interests of the child;

448

Monica McWilliams, Rhyannon Blythe and Hannah Russell

— no discrimination of any kind; — prompt response to asylum applications; and — identification of those that might be at risk of harm. Generally speaking, the children of asylum seekers will be kept with their parents on the basis that this is in accordance with the interests of family unification and the best interests of the child. Children have consequently been detained in detention centres with other adults. Keeping families together satisfies Article 8 of the ECHR but raises concerns under Article 5 (the right to liberty). Issues have also arisen under Article 14 in relation to the standards of living to which asylum seekers, immigrants and refugees are subjected. Victims of domestic violence who are dependent on their partner’s visa in order to reside in the UK are eligible to apply for indefinite leave to remain. They can also claim a number of other exemptions, such as not having to demonstrate knowledge of the English language or of life in the UK. For more information about the rights of immigrants see Chapter 7.

Prisoners’ Access to Their Family Prisoners’ visitation and correspondence rights are governed by the Prison and Young Offenders Centre Rules (NI) 1995 and rule 68A of the Prison and Young Offenders Centre (Amendment) Rules (NI) 2009. Limitations on prisoners’ access to family through visitations and correspondence can be justified if the reasoning is proportionate and falls within the scope of the exceptions set out in Article 8(2) of the ECHR (X v Netherlands, 1966; X v Germany, 1966; Ostrovar v Moldova, 2005). To accommodate Article 8 rights, a number of schemes have been set up for prisoners and their families. Child-centred visits have been established for parents or grandparents and extended schemes are available for mothers in prison to visit with their children. There may be cause for a prisoner’s correspondence to be interfered with by the authorities, but these limitations must be reasonable and proportionate if they are not to violate Article 8(2) of the ECHR (Faulkner v UK, 2002; Re John Byers’ Application, 2004). For further information on prisoners’ rights see Chapter 6.

Useful Contacts Bryson-Intercultural (formerly the Multi-Cultural Resource Centre) 9 Lower Crescent Belfast BT7 1 NR

Family and Sexual Matters tel: 028 9023 8645 www.mcrc-ni.org Equality Commission for Northern Ireland Equality House 7–9 Shaftesbury Square Belfast BT2 7DP tel: 028 9050 0600 www.equalityni.org Northern Ireland Council for Ethnic Minorities (NICEM) Ascot House, 3rd floor 24–31 Shaftesbury Square Belfast BT2 7DB tel: 028 9023 8645 www.nicem.org Northern Ireland Human Rights Commission Temple Court 39 North Street Belfast BT1 1NA tel: 028 9024 7844 www.nihrc.org Northern Ireland Prison Service Prison Service Headquarters Dundonald House Upper Newtownards Road Belfast BT4 3SU tel: 028 9052 5065 www.dojni.gov.uk/index/ni-prison-service.htm Women’s Aid Federation (Northern Ireland) 129 University Street Belfast BT7 1HP 24 hour Domestic Violence Helpline: 0800 917 1414 tel (admin): 028 9024 9041 email: [email protected] www.womensaidni.org

449

21 Children’s Rights THE CHILDREN’S LAW CENTRE

This chapter deals primarily with the rights of children to care and justice. Information on the rights of children in other contexts is provided elsewhere in this book. Children and young people, as human beings, are entitled to the full range of human rights protections. The provisions of the European Convention on Human Rights (ECHR), for example, as incorporated into Northern Ireland’s law by the Human Rights Act 1998, apply equally to children and young people. Children and young people’s rights are also defined by many other human rights instruments. The UK government has ratified the following UN treaties, all of which apply to children and young people: — — — — —

Convention on the Rights of the Child (CRC); Covenant on Civil and Political Rights (ICCPR); Covenant on Economic, Social and Cultural Rights (ICESCR); Convention on the Elimination of All Forms of Racial Discrimination (CERD); Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); — Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and — Convention on the Rights of Persons with Disabilities (UNCRPD). These treaties are binding internationally on the UK government and set the minimum internationally agreed standards in relation to a very wide range of rights to which children and young people are entitled. Other relevant international standards regarding youth justice include the UN Rules for the Protection of Juveniles Deprived of their Liberty (1990), the UN Guidelines for the Prevention of Juvenile Delinquency (‘The Riyadh Guidelines’) (1990) and the UN Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) (1985). While not binding on states, these standards reflect a broad consensus on the part of the international community and have strong moral force.

The Children (NI) Order 1995 The Children (NI) Order 1995 (the Order), is the principal piece of legislation relating to the care of children in Northern Ireland. It mirrors the Children Act

452

The Children’s Law Centre

1989 in England and Wales and reflects many of the general principles of the CRC. Judicial interpretations of the Children Act 1989 are therefore highly persuasive in Northern Ireland. The Department of Health, Social Services and Public Safety (DHSSPS, or the Department) has overall responsibility for implementing crucial aspects of the Order in Northern Ireland. Several volumes of detailed guidance on the 1995 Order have been published by the Department. The role of the Health and Social Care Board is to commission social services and to work in partnership with Health and Social Care Trusts to provide services. The Board has an annual budget of £4 billion, allocated by the Northern Ireland Executive. The Trusts have been established under the Health and Personal Social Services (NI) Order 1991, as amended in 1994. This legislation allows Trusts to undertake the statutory childcare functions which are the responsibility of the Board. The Board purchases services from the Trusts and may stipulate conditions, but Trusts are expected to develop their own plans and priorities. In practice it is the Trusts which deliver all services to children. The Health and Personal Social Services Act (NI) 2001 established the Northern Ireland Social Care Council, which provides for the registration, regulation and training of social care workers, including social workers, whether working in the statutory or voluntary sectors. The Board, Trusts and the Social Care Council are public authorities and are therefore required by the Human Rights Act 1998 to act in ways which are compatible with the ECHR. They must also comply with the duties regarding equality of opportunity and good relations imposed by section 75 of the Northern Ireland Act 1998 (see Chapter 12).

Children in Need Part IV of the 1995 Order gives extensive powers to Health and Social Care Trusts to prevent children being taken into care and to provide support for families who are providing care for children who are classified as being ‘in need’. Article 17 defines a child as ‘in need’ if: — he or she is unlikely to achieve or maintain, or have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision of services; — his or her health or development is likely to be significantly impaired, or further impaired, without the provision of such services; or — he or she is disabled. The definition of ‘family’, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom the child has been living. Any support provided for a child in need may also be provided to the family of that child if it is provided as support for the child in need.

Children’s Rights

453

The definition of ‘child in need’ is open to variable interpretation, particularly in relation to ‘a reasonable standard of health or development’, and it can cause difficulties when attempting to enforce a Trust’s duties. Elsewhere in the Order the test of ‘significant harm’ requires the comparison of a child’s health or development with ‘that which could reasonably be expected of a similar child’ (art 50(3)). If such comparisons were used to distinguish those ‘in need’, this could exclude children who are disadvantaged because of poverty, culture, ethnicity or lack of resources. The Order must, however, be interpreted in a way which is compatible with international standards including the ECHR, the United Nations Convention on the Rights of the Child and the United Nations Convention on the Rights of Persons with Disabilities, and also with the authority’s obligation to promote equality of opportunity.

Duties in Respect of Children in Need Article 18 of the Order provides that: It shall be the general duty of every authority … to safeguard and promote the welfare of children within its area who are in need, and … to promote the upbringing of such children by their families, by providing a range and level of personal social services appropriate to those children’s needs.

Services may be provided to the child in need, his or her family, or any member of the family, ‘if the service is provided with a view to safeguarding and promoting the child’s welfare’ (art 18(3)). While assistance may be unconditional, authorities may charge for services, having regard to a family’s ability to pay. People in receipt of various state benefits are exempt from such charges. Services provided may include ‘giving assistance in kind or, in exceptional circumstances, in cash’ (art 18(6)). The provision is not used in circumstances where an application for social security benefits, loans or grants would be appropriate. To enable Trusts to carry out their functions, specific duties and powers are set out in Schedule 2 to the Order. These include duties to take reasonable steps to identify the extent to which there are children in need within the authority’s area, to publish information on services, and to ensure that this information is received by those who might benefit from it. The authority must maintain a register of disabled children and provide services enabling them to lead lives which are as normal as possible. Services should prevent the neglect and abuse of children and authorities should take steps to reduce the need to bring criminal or care proceedings in relation to children. Advice, guidance, counselling and occupational, social, cultural or recreational activities may be provided through family centres or elsewhere. When providing day care facilities and encouraging people to act as foster parents, authorities should consider the racial groups to which children belong. In several instances, Trusts must provide such services only to the extent they consider appropriate in relation to the children within its area.

454

The Children’s Law Centre

Day Care, Childminding and Other Services Day care is defined (art 19(1)) as ‘any form of care or supervised activity provided for children during the day’. Authorities must provide day care for children in need aged five or under who are not yet attending school and are in the authority’s area, and they may provide it for other children in their area aged five or under even when they are not ‘in need’. Trusts have the power to provide training, advice, guidance and counselling for day care workers, but are not obliged to do so. Authorities must provide care and supervised activities outside school hours and during school holidays for school children in need and may provide such facilities for any other school child. Provision should take account of facilities maintained by others, including district councils or Education and Library Boards. The range of services provided by Trusts can include day nurseries, playgroups, out of school clubs, holiday schemes, parent and toddler groups, toy libraries, drop-in centres and play-buses. Bodies whose help is requested, such as Education and Library Boards, are obliged to comply with the request if this is compatible with their own statutory duties. The Health and Social Care Board, in conjunction with the appropriate district council and Education and Library Boards, must review the total provision of day care, childminding and other services at least once every three years (art 20). In practice, the Board works with a broad range of other agencies to develop Children’s Services Plans.

Registration of Childminding and Day Care Services Both childminders and persons wishing to provide day care must first register with the relevant Trust. The register is open to the public. Schools, hospitals, children’s homes and nursing homes are exempt from definitions of day care and childminding and are not required to register. Premises where day care is provided on less than six days in any year are also exempt from registration but the person providing care must still notify the relevant Trust in writing before the first occasion when the premises are to be used. In order to meet registration requirements, applicants must comply with the ‘Minimum Standards for Childminding and Day Care for Children under 12’, which were issued by the DHSSPS in 2012. Article 119 of the Children (NI) Order 1995 defines a childminder as a person who looks after children under 12 years of age, for reward, for more than two hours in any day. Exemptions from this definition include parents, relatives, people with parental responsibility, foster parents and nannies. A person may be disqualified from being registered because, for example, he or she has been convicted of a prescribed (eg violent or sexual) offence. No-one disqualified from being registered can be employed, or have a financial or management interest, in the provision of day care without disclosing the disqualification to the authority and obtaining its written authorisation. A Trust may also refuse to register an

Children’s Rights

455

applicant if that person or any person residing on the premises or employed or likely to be employed on the premises is not ‘fit to look after’ or ‘be in the proximity of ’ children under the age of 12 (art 124). The Board may impose such reasonable requirements on childminders (art 125), and on persons providing day care for young children, as they consider appropriate. Currently there is no requirement that such persons hold a relevant childcare qualification. The conditions and requirements which do apply are set out in the Children (NI) Order Regulations and Guidance, Volume 2. Under the Order certain supervised activities are exempt from the requirement to register. These include uniformed organisations and religious activities for children, leisure and recreational activities, extra-curricular activities occurring mainly in schools, activities designed to enhance a child’s skills and attainments including dancing, sports-related activities and education tuition.

Staff and Volunteers The DHSSPS has issued Our Duty to Care, a set of guidelines on the recruitment, training and selection of all staff or volunteers who work with children. It can be downloaded from the Volunteer Now website at www.volunteernow.co.uk. All staff and volunteers working with children and/or specific groups of adults in ‘regulated activity’, as defined by the Safeguarding Vulnerable Groups (NI) Order 2007 and amended by the Protection of Freedoms Act 2012, are subject to DHSSPS disclosure and barring arrangements. From September 2012 regulated activity relating to children has included: — unsupervised activities: teaching, training, instructing, caring for or supervising children, providing advice or guidance on well-being, driving a vehicle only for children; — work for a limited range of establishments (specified places) with opportunity for contact with children, such as schools, children’s homes, childcare premises, children’s hospitals (work undertaken by supervised volunteers in these places is not regulated activity); — relevant personal care, for example, washing or dressing, or health care by or supervised by a professional (even if carried out only once); and — registered childminding and foster care. Work under the first two of the above categories is regulated only if undertaken regularly. This means carried out by the same person once a week or more, or on four or more days in a 30-day period or overnight. The day-to-day line manager or supervisor of an individual in regulated activity is also in regulated activity. Statutory guidance on supervision of activity with children is available from the website of the Department of Education at www.education.gov.uk. The Safeguarding Vulnerable Groups (NI) Order 2007 enhances arrangements for safeguarding children and requires a check to be made against the ‘barred

456

The Children’s Law Centre

lists’. The Order creates two barred lists, one for children and another for adults. It also: — requires organisations to carry out an ‘enhanced disclosure check’ (EDC) against information in barred lists for regulated activity with children (or vulnerable adults) through Access NI; an EDC includes information on criminal convictions, cautions, cases pending, and relevant ‘soft’ information held by the Police Service of Northern Ireland (PSNI); — requires organisations to prevent barred people from engaging in regulated activity with children or vulnerable adults; — places duties on organisations to refer unsuitable people to the Disclosure and Barring Service for possible inclusion on a barred list; and — creates new offences relating to barred people engaging in regulated activity; it is also a criminal offence to offer work in regulated activity to a barred person.

Investigation of Abuse and Neglect Many professionals can be involved in the protection of children. The Safeguarding Board for Northern Ireland (SBNI) was established in 2012 to coordinate and ensure the effectiveness of the work of all agencies involved in safeguarding and promoting the welfare of children and young people in Northern Ireland. The SBNI is required to establish: — five independently chaired Safeguarding Panels, in Belfast and the Northern, South Eastern, Southern and Western Trust areas; — a ‘case management review’ panel; and — a ‘child death overview’ panel. The Safeguarding Panel’s role is to implement policy and facilitate multidisciplinary working to prevent, investigate and treat child abuse. In practice, social workers and the police will have the key roles in dealing with more serious allegations of child abuse and neglect. The police will be concerned to investigate whether any offence has been committed, while the social workers will focus on the child’s welfare and the family’s capacity to provide care. When a child discloses abuse to any professional, that person must report it immediately. Failure to do so may result in disciplinary action or, if the Director of Public Prosecutions (DPP) consents, the person may be prosecuted for failure to report a crime (Criminal Law Act (NI) 1967, s 5). In circumstances where a Trust (or the NSPCC) has reasonable cause to suspect that a child ‘is suffering or is likely to suffer significant harm’, it has a duty to investigate (1995 Order, art 66). An assessment of the needs of the child and family should be undertaken. Where social workers have such concerns about a child’s welfare, they should first seek the voluntary cooperation of parents in making an assessment, and may provide

Children’s Rights

457

services to help the family care for the child. ‘Harm’ is defined as ill-treatment or impairment of health or development, compared with that which could reasonably be expected of a similar child (1995 Order, art 50(3)). If there is an allegation that child abuse has occurred, a strategy discussion will normally be held between social workers and police within 24 hours of receiving the referral or discovering the facts. The ‘Protocol for Joint Investigation by Social Workers and Police Officers of Alleged and Suspected Cases of Child Abuse’ will govern the investigation process. The police have established special Child Abuse Investigation Units (CAIUs) to deal with cases of child abuse and sexual offences. Volume 6 of the 1995 Order’s Guidance and Regulations states that within 15 days of a formal (social work) investigation being initiated, a child protection case conference should be held to decide whether there is sufficient concern to place the child’s name on the Child Protection Register. All agencies in contact with the child may, initially, be invited to attend. If it is decided to place the child’s name on the register the case will be reviewed after three months and thereafter at least six monthly. Family members, including the alleged abuser and the child under discussion, may also be invited to attend the whole or part of these case conferences. If the alleged abuser is not heard the case conference may be held to have acted unfairly and in breach of natural justice (R v Norfolk County Council, ex parte M, 1989). The child and relevant others now have rights to be consulted on how they wish to make their views known and considered, on who should attend the case conferences, and on the exchange of information between the agencies, where this would affect the person’s ECHR rights such as the right to a fair hearing and the right to respect for private and family life. In childcare cases, a person’s right to information may be restricted in order to prevent information being disclosed which could place the child at risk (Re M (A Minor) (Disclosure of Material),1990). On registration of a child, the case conference should set a time limit for the completion of a comprehensive assessment and an initial child protection plan. This plan is a written agreement drawn up with parents and carers. It outlines the roles and expectations of agencies and carers with regard to the child’s care and protection. A child may be ‘de-registered’ by a child protection case conference if it is believed that circumstances have changed significantly and the child is no longer at risk.

The Child ’s Evidence If a child is interviewed jointly by a police officer from the CAIU and a social worker, consideration will be given to whether he or she should have a parent, relative or friend present. Normal practice is that a trusted adult will be available to the child in an adjoining room. The need for medical examination and for video-recording of interviews will also be considered. Such recordings may be used in either civil or criminal court proceedings. The Children’s Evidence (NI) Order 1995 has inserted provisions into the Police and Criminal Evidence (NI)

458

The Children’s Law Centre

Order 1989 to allow a video-recording of an interview with a child to be used as the child’s evidence-in-chief in criminal proceedings, subject to certain conditions. A document entitled Achieving Best Evidence in Criminal Proceedings was issued by the Department of Justice in 2012 to provide guidance on interviewing victims and witnesses, the use of ‘special measures’ (see below) and the provision of pre-trial therapy. The Children’s Evidence (NI) Order 1995 allows for a notice of transfer to be issued by the DPP if he or she is satisfied that there is enough evidence to commit a defendant to trial. This enables the case to be heard by the Crown Court without a preliminary hearing in a magistrates’ court. At trial, the child’s evidence or cross-examination may be given through a television link so that the alleged victim does not have to see the alleged abuser while giving evidence. The NSPCC provides a Young Witness Service to children required to give evidence in every Crown, magistrates’ court or youth court in Northern Ireland. The Criminal Evidence (NI) Order 1999 gives rights to all children under 17 years (and to other vulnerable witnesses) to have special measures taken to protect them when giving evidence. These measures can include screening, using live video links, clearing the public from the court, dispensing with wigs and gowns, video-taping the cross-examination and any re-examination of the witness in advance of the trial, and allowing the use of aids to communication such as an interpreter or a sign board for persons with a disability.

Children and the Civil Courts Article 164(4) of the Children (NI) Order 1995 provides that a juvenile court ‘sitting for the purpose of exercising any jurisdiction covered by or under [the] Order may be known as a family proceedings court’. There are seven of these in Northern Ireland. Applications will normally be heard in a family proceedings court unless other proceedings in relation to the child are pending in the High Court or a county court. The Children and Young Persons Act (NI) 1968 continues to apply in respect of the constitution of family proceedings courts, that is, they comprise a district judge and two lay panellists. Proceedings may be transferred to a specialist county court (known as a Family Care Centre) if they are exceptionally grave, important or complex. They may then be transferred to the Family Division of the High Court if this is considered appropriate and would be in the best interests of the child. Appeals from a family proceedings court will be to a Family Care Centre. Cases that are first heard by the Family Care Centre may be appealed to the High Court and thereafter to the Court of Appeal. For more details on the allocation of proceedings see the Children (Allocation of Proceedings) Order (NI) 1996 and the ‘Notes for Guidance’ which are appended to the Children’s Order Advisory Committee’s ‘Guide to Case Management in Public Law Proceedings’ (which also apply to private law proceedings).

Children’s Rights

459

Court Orders and Child Protection Child ’s Welfare is Paramount Article 3 of the Children (NI) Order 1995 requires a court determining any question relating to a child’s upbringing to regard the child’s welfare as ‘the paramount consideration’. This is often referred to as the ‘best interests principle’. In determining the best interests of the child, Article 3 sets out that the court should have particular regard to certain issues which have become known as the ‘welfare checklist’. This includes consideration of the child’s ascertainable wishes and feelings, his or her physical, emotional and educational needs, the likely effect on the child of any change in circumstances, his or her age, sex, background and other relevant characteristics, the capacity of the child’s parents to meet his or her needs, and any harm the child has suffered or is at risk of suffering. The court ‘shall not make (any order) unless it considers that to do so would be better for the child than making no order at all’. This ‘no order principle’ establishes a presumption of non-intervention unless the child’s best interests dictate otherwise. Under Article 11 the court must also have regard to ‘the general principle that any delay in determining the question is likely to prejudice the welfare of the child’ and so must ‘draw up a timetable with a view to determining (any) question without delay’.

Assessment and Protection Orders In some situations social workers will be able to ensure the child’s safety by persuading the alleged abuser to leave the home. Paragraph 6 of Schedule 2 to the 1995 Order empowers Trusts to assist such a person to obtain alternative accommodation arrangements. Alternatively the ‘non-accused’ parent may apply for a non-molestation order under article 20 of the Family Homes and Domestic Violence (NI) Order 1998 (see also Chapter 20). A child under 16 may apply for such an order with leave of the court, which has to be satisfied that he or she has sufficient understanding to make the application. Trust and NSPCC social workers may apply for a child assessment order (under art 62) in circumstances where there is a reasonable suspicion that a child is suffering significant harm, but where parents will not cooperate to allow an assessment to be made. Such an order has a maximum duration of seven days and the court directs the type and nature of the assessment to be carried out. A child of sufficient understanding may, however, refuse to undergo any medical, psychiatric or other assessment. For such an assessment the child will remain at home, separated from his or her parents only if this is necessary to comply with court directions, for example, for medical or other interviews. If a court, hearing an application for a child assessment order, becomes satisfied that there are grounds to make an emergency protection order (EPO), it must

460

The Children’s Law Centre

make that order instead. A Trust or authorised person (such as an NSPCC social worker) may apply directly to the court for an EPO under article 63. In certain circumstances (eg at weekends or at night) such an order may be issued by a district judge or member of the juvenile court panel sitting alone. A court will make an EPO only if satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he or she is not removed from the situation (eg the family home) or does not remain in the situation (eg in hospital recovering from an injury). An EPO may also be sought where a Trust is making inquiries about a child, access to the child is being unreasonably refused, and the Trust has reason to believe that access to the child is required as a matter of urgency. EPOs last for up to eight days and can be extended once only for a further seven days. Where the court is satisfied that it would benefit the child, and there is someone to care for the child, it may include an exclusion requirement in the EPO, removing a named person rather than the child from the family home. Certain people, including the child and his or her parents, may apply for the discharge of an EPO at any time, but no appeal can be made against court decisions to make, extend or discharge an order (Essex County Council v F, 1993). An EPO grants parental responsibility to the applicant Trust whilst it is in force. This allows the Trust to take only such action as is reasonably required to safeguard or promote the child’s welfare, having regard to the duration of the order. In practice, it will usually be a Trust that applies for an EPO. Although such orders allow for the removal of a child from the family home, the applicant is still required to ensure the child has reasonable contact with parents, anyone else who has parental responsibility for him or her, and others, such as people he or she was living with before the order was made. However, the court may restrict such contact if it considers this appropriate under article 63(6) and may direct that medical, psychiatric and other assessments be made, subject to the right of a child of sufficient understanding to refuse to submit to examination or assessment. The police also have powers to take children into police protection for up to 72 hours where a child might otherwise suffer significant harm (art 65). They may also assist in searching premises for a child in need of emergency protection, if the court issues a warrant to this effect. If there continue to be concerns regarding children subject to child assessment orders, EPOs or police protection, an application may be made by a Trust or the NSPCC for a care order or supervision order (see below). Alternatively, where concerns about a child’s health or development relate to specific matters rather than the parents’ general capacity to provide care or control, social workers may seek leave of the court to apply for an order under article 8 of the Children (NI) Order 1995, provided the child is under 16 years. Article 8 prohibits the making of residence or contact orders in favour of a Trust, but a ‘specific issue order’ or a ‘prohibited steps order’ can be obtained (see also Chapter 20). A specific issue order can be made if, for example, a child needs treatment, such as a blood transfusion, where parents refuse to consent or cannot be contacted. A prohibited steps order can be made to prevent parents from doing something which could prejudice the

Children’s Rights

461

child’s health or development. The court has power to make an article 8 order of its own motion if it believes that this would be the most appropriate course of action.

Care and Supervision Orders Where a Trust or the NSPCC applies for a care or supervision order, the court can make either order irrespective of the preferred option of the applicant. But either order may be made only if the court is satisfied that the child is suffering or likely to suffer significant harm attributable to a lack of parental care or to the child being beyond parental control (art 50(2)). Events which have happened in the past are relevant to the extent that they might influence present or future conduct. To ensure that the court’s decisions are based on known facts, the rule that parties to litigation may obtain an expert’s report which remains privileged unless the party wishes to rely on it does not apply in Children Order cases. All relevant reports should be disclosed by all parties in care proceedings (see Oxfordshire County Council v M, 1994). The court may make interim orders if satisfied that there are reasonable grounds for believing that the grounds for making a full order exist (art 57(2)). When making an interim care order, the court may exclude a named person from the family home rather than removing the child, provided a parent or other person is able and willing to live there with, and give care to, the child (Children (NI) Order 1995, art 57A). The maximum period an interim order can last is, in the first instance, eight weeks. Subsequent orders may be made for maximum periods of four weeks. Interim orders may be renewed in the absence of the parties if there has been no material change in circumstances since the previous hearing. A supervision order requires a specified person, the supervisor, to ‘advise, assist and befriend the supervised child’ (art 54). The supervisor can require the child to live at a specified place, to present him- or herself to a specified person and to participate in specified activities. The order can include directions as to psychiatric and medical treatment, with the child’s consent. Supervision orders have an effect for a period of one year and may be extended to up to three years from the date on which they are made (but not beyond the child attaining the age of 18). The effect of a care order is to give the designated authority parental responsibility for the child. The Trust shares parental responsibility with parents and others who already have it. The Trust has, however, power to limit the extent to which any person may exercise his or her parental responsibility for the child in certain circumstances, if this is reasonable for the purposes of promoting the child’s welfare. Children in care should normally be allowed contact with parents, guardians and others with whom they resided prior to the order being made. Trusts can apply to the court for permission to refuse contact with any person (art 53) and may refuse contact itself in any case, on an emergency basis, provided the refusal does not last for more than seven days. Parties to care proceedings are invited to comment on arrangements for contact before a care order is made.

462

The Children’s Law Centre

No care or supervision order may be made with respect to a child who has reached the age of 17, or 16 in the case of a child who is married or is a civil partner (art 50(4)). Any care or supervision order may be discharged by the court on application of the child, the person who has parental responsibility for the child, or the authority designated by the order. When a care order is discharged, the court has power to substitute a supervision order if it wishes to do so.

Guardians ad Litem In almost all of the ‘public law’ cases above, the court will appoint a guardian ad litem who will be under a duty to safeguard the interests of the child. To ensure the independence of the guardian ad litem, a separate agency has been established known as the Northern Ireland Guardian ad Litem Agency (NIGALA) and it has a panel of guardians, who are qualified, experienced social workers. Once appointed, a guardian’s role is to investigate all the circumstances of the case and make a report to the court to assist it to take decisions in the best interests of the child. The guardian will consult parents and others as necessary. He or she will also examine the Trust’s plans for the child and may make recommendations in respect of these. The guardian has a right of access to, and copies of, any records relevant to contact with the child by the Trust or NSPCC and may present any part of any record as evidence in court. Where the guardian believes that acquiescing to the child’s wishes is not in his or her best interests, the views of both the child and the guardian should be reported to the court. The guardian will appoint a solicitor to act for the child if the court has not already done so and, where the child is not of sufficient understanding, the guardian will instruct the solicitor on the child’s behalf. In 2013, NIGALA interviewed and selected a cohort of solicitors who are accredited to work with the guardian in care proceedings and are required to attend continuing professional development training linked to their accreditation. Article 60 empowers the court to appoint a solicitor for any child whether or not a guardian ad litem is appointed, provided a child of sufficient understanding wishes to instruct a solicitor or this appears to the court to be in the child’s best interests. Solicitors should act on the instructions of a child of sufficient understanding in the normal way. There is no definition in the Order of ‘sufficient understanding’, but the principle has been tested in relation to medical decisions. A child of 16 years can consent to medical or other treatment without the consent of a parent or guardian (Age of Majority Act (NI) 1969, s 4). A younger child may do so if he or she fully understands the nature and implications of the proposed treatment (Gillick v West Norfolk and Wisbech Area Health Authority, 1985). However, a younger child who refuses life-saving treatment may be given such treatment if the High Court in its inherent jurisdiction, or anyone with parental responsibility for the child, consents to it (Re W, 1992). In recognition of the emerging capacity and legal

Children’s Rights

463

competency of the child and the need for separate representation in some cases, practice has developed that where a child expresses a view which conflicts with the view of the guardian, the guardian may instruct a new legal representative and the solicitor who was previously appointed by the guardian will continue to represent the child in ongoing public law proceedings.

Accommodation for Children Article 21 of the Children (NI) Order 1995 provides for the provision of accommodation for children. It states that every authority shall provide accommodation for any child in need within its area who appears to the authority to require accommodation as a result of: — there being no person who has parental responsibility for the child; — the child being lost or abandoned; or — the person who has been caring for the child being prevented (whether or not permanently, and for whatever reason) from providing the child with suitable accommodation or care. The law in relation to the duties on Trusts and the Northern Ireland Housing Executive to accommodate homeless 16- and 17-year-olds in Northern Ireland was clarified in 2012 by way of a successful judicial review application (JR 66’s Application, 2012). This case resulted in revisions to the Regional Good Practice Guidance for the Northern Ireland Housing Executive and the Health and Social Care Trusts on meeting the accommodation and support needs of 16 to 21-yearolds. The Guidance now takes account of a seven-step test of youth homelessness which was first laid down by the House of Lords in R (G) v London Borough of Southwark (2009). When carrying out an assessment as to whether a child is an article 21-entitled young person Trusts must now ask the following questions in the order that they appear below: — — — — —

Is the applicant a child? Is the applicant a child in need? Is the child within the Trust’s area? Does the child appear to the Trust to require accommodation? Is that need the result of there being no person who has parental responsibility for the child, the child being lost or abandoned, or the person who has been caring for the child being prevented from providing the child with suitable accommodation or care? — What are the child’s wishes and feelings regarding the provision of accommodation? — What consideration (having regard to the child’s age and understanding) is to be given to those wishes and feelings?

464

The Children’s Law Centre

A Trust must provide accommodation for children in need whenever the person caring for them is prevented from doing so for whatever reason (art 21(1) (c)) and may provide accommodation for any child if it considers that this would safeguard or promote the child’s welfare. The Trust should ascertain the child’s views, if he or she is able to express them. The Trust does not acquire parental responsibility by providing accommodation. While the child’s daily care has been delegated to the Trust (art 5(8)), it cannot take major decisions or continue to care for the child without the consent of a person with parental responsibility. In emergencies, where such persons cannot be contacted or do not consent, the Trust may seek leave to apply for an article 8 order (see page 460 above). Any child found lost or abandoned may also be provided with accommodation, and so an EPO (see page 459 above) will not be required unless the child is also believed to be at risk of significant harm. A person who has reached the age of 16, but is under 21, may be accommodated by a Trust if his or her welfare ‘is likely to be seriously prejudiced if it does not provide’ such accommodation. When a person of this age group agrees to be accommodated, the Trust need not discharge him or her at the request of a person with parental responsibility.

Looked after Children Regardless of whether a child is accommodated by a Trust or placed by the court on a care order, certain general rules apply—the Arrangement for Placement of Children (General) Regulations (NI) 1996. No child should be placed in a children’s home before other options such as family placements are considered, and all children admitted to care must have a written care plan. Care planning should aim to promote the child’s welfare in consultation with the child and family, having regard to their wishes and feelings. Each child’s case should be reviewed within two weeks of the child being admitted to care, reviewed again not more than three months later, and thereafter every six months (Review of Children’s Cases Regulations (NI) 1996, reg 3). If the child is accommodated for only short periods (not more than four weeks in any single period or more than 90 days in any 12-month period) the review will take place within three months of the beginning of the first short period, and six monthly thereafter while the case continues. Reviews take the form of meetings which the child, the family and relevant professionals are invited to attend. Children can make their views known in writing, on tape or by other means. A child’s religious, linguistic, cultural and ethnic background must be taken into account in making plans for the child.

Fostering For children whose relatives cannot care for them, foster care is the preferred way of providing care. The Children (NI) Order Regulations and Guidance, Volume 3,

Children’s Rights

465

‘Family Placements and Private Fostering’, govern the recruitment, management and support of foster carers. The Foster Placement (Children) Regulations 1996 regulate the assessment, approval and registration of foster parents. The approving authority must, at least annually, review the foster parent’s approval and ensure that his or her home continues to be suitable. Foster parents should, where possible, be of the same religious persuasion as the child, or must give a written undertaking that the child will be brought up in his or her own religious persuasion (see Re T, 2002). The Trust can remove a child from a foster placement immediately if it appears that ‘continuation of the placement would be detrimental to the welfare of the child’ (reg 7). If a child has lived with foster parents for a period of at least three years within the five years before making the application, the foster parent can apply for a residence order in respect of the child (Children (NI) Order 1995, art 9). The foster parent will then have parental responsibility for the child while the residence order remains in force. The Children (Private Arrangements for Fostering) Regulations (NI) 1996 are the statutory rules which apply to situations where children are placed with foster carers by private agreement with their parents. A foster parent must notify the Trust not less than six weeks before receiving the child, unless he or she was already caring for the child before becoming a foster parent or had to do so in an emergency. In the latter circumstances, the authority should be notified not more than 48 hours after the arrangements begin. A social worker will visit the child within one week of the fostering arrangement beginning and then at intervals of not more than six weeks in the first year, and every three months in any second or subsequent year. The foster parents and their accommodation will be assessed to ensure that they are suitable and that the child’s health and educational needs will be met. The foster parent must notify the Trust of any termination of placement.

Children’s Homes The Children’s Homes Regulations (NI) 2005 and Guidance, Volume 4, ‘Residential Care’, govern the care of children admitted to children’s homes run by Trusts, voluntary societies or private businesses. All voluntary and privately run homes must be registered. The homes will be inspected by the Regulation and Quality Improvement Authority (RQIA). A person who has been disqualified from fostering a child privately cannot be involved in the management of, employed in or have a financial interest in, a voluntary or privately run home without disclosing their disqualification to the Trust and obtaining its written permission to be so employed. The Guidance requires children’s homes to be adequately staffed, having regard to the age, sex and characteristics of the children. In maintaining good order and discipline, staff should promote the participation of children in decision-making and take account of the child’s age, understanding and competence. The Guidance states that formal (non-physical) sanctions should be used sparingly and, if

466

The Children’s Law Centre

administered, recorded in a separate logbook. Sanctions specifically prohibited by the regulations include corporal punishment, deprivation of food and drink, restriction or refusal of visits or communications, requiring a child to wear distinctive or inappropriate clothing, withholding medication, intentional deprivation of sleep and intimate physical searches. Staff may refuse a child permission to go out, or require a child to pay for or contribute to the repair or replacement of any items stolen or damaged. Holding a child is permitted, for instance when leading a child away from destructive or disruptive behaviour by the hand, arm or by means of an arm around the child’s shoulder. Holding is distinguished from physical restraint by the degree of force used. Holding would discourage an action, while restraint would prevent it. Physical restraint is permitted by the Children’s Homes Regulations (NI) 2005 to the extent that it is ‘action immediately necessary to prevent injury to any person or serious damage to property’ (reg 16(4)(b); see also s 3 of the Criminal Law Act (NI) 1967 regarding the use of reasonable force, discussed in Chapter 3). Afterwards the child should be counselled on why restraint was necessary and be given an opportunity to put his or her side of the story. The residential social worker’s line manager should discuss the incident with him or her within 24 hours and a full report should be prepared within 48 hours. The child should also be interviewed by someone not directly connected to the home in question, for example the field social worker. The frequency with which physical control is used should be monitored. Complaints about the use of restraint can be made under the child protection or complaints procedures. Allegations of assault can be reported to the police in the normal way. Responsible authorities (Trusts, voluntary organisations, and privately run children’s homes) are required to have a procedure for considering representations, including complaints, about children’s services, and to publicise these. The complainant can be the child, a person with parental responsibility, or any person considered to have sufficient interest in the welfare of the child. The complaint may be written or oral. Where problems are unresolved, the complaints procedure should be initiated, an investigation should take place and the complainant should be notified of the outcome of the investigation.

Secure Accommodation Article 44 of the 1995 Order and the Children (Secure Accommodation) Regulations (NI) 1996 provide the statutory framework for the restriction of the liberty of children in care. A child should not be kept in secure accommodation unless he or she ‘has a history of absconding and is likely to abscond from any other … accommodation’ and, if absconding, ‘is likely to suffer significant harm’ or to injure him- or herself or other persons if kept in other accommodation. A child should not continue to have his or her liberty restricted once the criteria cease to apply. The protection of others is, however, considered a valid reason

Children’s Rights

467

for the continued use of secure accommodation (art 26(5) and Re M (A Minor) (Secure Accommodation Order), 1995). The 1995 Order and the 1996 Regulations must be interpreted in such a way as to be compatible with Article 5 of the ECHR (the right to liberty and security). No child under the age of 13 may be placed in secure accommodation without the prior approval of the DHSSPS. Regulation 3 prohibits the use of secure accommodation for other children in certain circumstances, including when children are detained under the Mental Health (NI) Order 1986 or when they are over 16 and are being provided with accommodation under the Trust’s discretionary powers. Regulation 6 sets a maximum period of 72 hours, either consecutively or in aggregate in any period of 28 days, for the restriction of a child’s liberty without court authority, unless the 72-hour period expires late on a Saturday, a Sunday or a public holiday, in which case the period will be treated as if it did not expire until 12 noon on the next working day. The maximum period for which a court may authorise a child to be kept in secure accommodation is three months in the first instance, although on subsequent applications the court may authorise secure accommodation for six months at a time. No court may exercise its powers to restrict a child’s liberty unless the child is legally represented in court, except where a child who has been informed of the right to legal aid, and given the opportunity to do so, has refused or failed to apply for such aid. A guardian ad litem should be appointed, unless the court does not consider this necessary to protect the welfare of the child. Article 166 makes provision for appeals against court decisions to authorise or refuse to authorise restriction of a child’s liberty. The Trust must also appoint three persons to review the placement within one month of its commencement and thereafter at threemonthly intervals. The child’s care should also be reviewed in the normal way in accordance with article 45 of the 1995 Order. Trusts providing secure accommodation must keep records of occasions when the child is locked up alone in any room other than during usual bedtime hours. Secure accommodation is inspected by the RQIA and the DHSSPS oversees these units.

Aftercare, Advice and Assistance Article 34A of the 1995 Order, which was inserted by the Children (Leaving Care) Act (NI) 2002, empowers Trusts to provide services to persons who were looked after at any time after reaching their sixteenth birthday. These services should last until a young person reaches the age of 21, or 24 if he or she continues in higher education. The new scheme introduced by the Children (Leaving Care) Act (NI) 2002 provides that a child who has been looked after for a period of 13 weeks, beginning after their fourteenth birthday and including a period after their sixteenth birthday, becomes an eligible child. The relevant Trust then has a

468

The Children’s Law Centre

duty to begin preparing the young person for life after care and the transition to adulthood. The Trust has a duty to appoint a ‘personal adviser’, who will act as an advocate for the young person and will help ensure that the relevant Trust and other service providers fulfil their duties to the young person. The Trust also has a duty to prepare a comprehensive ‘pathway plan’, following assessment, which will take account of the views of the young person and provide a detailed plan for the transition period up to the young person’s twenty-first birthday. A young person who is aged 16 or 17 and who ceases to be looked after but before that time had been an eligible child, is known as ‘a relevant child’ and the Trust has the same duties to appoint a personal adviser and prepare a detailed pathway plan. When an eligible child reaches the age of 18 and ceases to be looked after, he or she becomes a former relevant young person but should still have a personal adviser and pathway plan and the Trust has duties in respect of expenses associated with education, employment and training until the young person reaches the age of 21, or 24 if the young person continues on to higher education.

Children and Criminal Justice The main legislation governing the treatment of children in the criminal justice system in Northern Ireland is the Criminal Justice (Children) (NI) Order 1998 (CJCO 1998). Until the Justice (NI) Act 2002 amended the 1998 Order, a child was anyone under the age of 17, but now it is anyone under the age of 18. The age at which a child can be held criminally responsible is 10. Below that age the child is irrefutably presumed to be incapable of offending behaviour. Section 53(1) of the 2002 Act sets out the principal aim of the youth justice system as being ‘to protect the public by preventing offending by children’. Section 53(2) goes on to say that ‘all persons and bodies exercising functions in relation to the youth justice system must have regard to that principal aim in exercising their functions, with a view (in particular) to encouraging children to recognise the effects of crime and to take responsibility for their actions’. Section 53(3) then adds: But all such persons and bodies must also have regard to the welfare of children affected by the exercise of their functions (and to the general principle that any delay in dealing with children is likely to prejudice their welfare), with a view (in particular) to furthering their personal, social and educational development.

Policing, Arrest and Detention The Police and Criminal Evidence (NI) Order 1989 (PACE Order), and its related Codes of Practice, provide certain minimum rights for children and young people

Children’s Rights

469

who attend police stations voluntarily, or who are arrested, detained and questioned at the police station. These are as set out for adults in Chapters 3 and 4. Persons under the age of 18 who are in police detention have the additional right under article 10 of the CJCO 1998 to have a person responsible for their welfare informed as soon as is practicable that they have been arrested, the reason why they have been arrested and where they are being detained. Social services and the probation service may also be informed if the child is in care or if a supervision or probation order is in force. This obligation to contact and inform the person responsible for the child’s welfare rests with the custody officer at the police station (PACE Code of Practice C, para 3.8). The Code also provides that custody officers must ask the appropriate adult to come to the police station to see the child (para 3.10). An appropriate adult is defined as the parent, relative, guardian or, if the child is in care, a member of a care authority, or voluntary organisation, or a social worker or, failing these, some other responsible adult aged 18 or over who is not a police officer or employed by the Northern Ireland Policing Board (paras 5.2, 6.1 and Annex B). If a child indicates that he or she does not want to receive legal advice, an appropriate adult should consider whether legal advice from a solicitor is required. The appropriate adult has the right to ask for a solicitor to attend if this would be in the best interests of the child. However, the child cannot be forced to see the solicitor if he or she is adamant that this is not their wish (para 6.4A). The Code also provides that the custody officer should emphasise the child’s right to, and the importance of, legal advice and that such legal advice can be made available quickly. If a child is cautioned in the absence of an appropriate adult, the caution must be repeated in the adult’s presence, unless the interview has by then already finished (para 10.12). The Code states that a child must not be interviewed regarding his or her suspected involvement in a criminal offence in the absence of an appropriate adult, unless certain exceptional circumstances apply (para 11.15). It also states that an appropriate adult present at an interview must be informed that he or she is expected not simply to act as an observer but to advise the person being interviewed and to facilitate communication with the person being interviewed (para 11.17). Article 9 of the CJCO 1998 requires children to be detained separately from adults in police stations and stipulates that girls must be under the care of a woman, so far as is practicable. The Code requires that children should not be placed in a police cell unless no other secure accommodation is available and the custody officer considers it is not practicable to supervise them if they are not placed in a cell, or that a cell provides more comfortable accommodation than other secure accommodation in the station. A child must never be placed in a cell with a detained adult (para 8.8). As regards the length of a period of detention, the Code of Practice C provides that detaining a child for longer than 24 hours will be dependent on the circumstances of the case and regard must be shown to the person’s special vulnerability,

470

The Children’s Law Centre

the legal obligation to provide an opportunity for representations to be made prior to a decision about extending detention, the need to consult and consider the views of any appropriate adult and any alternatives to police custody. When a child is charged with or informed that they may be prosecuted for an offence, they should be cautioned in the appropriate adult’s presence if that person is already at the police station. If he or she is not at the police station then these provisions must be complied with again when the adult arrives there, unless the child has by then been released (para 16.1–16.6). A record must be made of anything said when the child is charged (para 16.8). Children are subject to both ordinary and anti-terrorism laws in virtually the same way as adults (see Chapters 3 and 4).

Bail Under the PACE Order the police may grant bail to children and young people both before and after they have been charged. Article 38(2) of the Order provides that if there is insufficient evidence to charge an arrested child, the child should be released with or without bail, unless the custody officer has reasonable grounds for believing that further detention is necessary to secure or obtain evidence. Following charge, the police may grant or refuse bail to children based on the same criteria that are applied to adults under article 39(1)(a) of the PACE Order (see Chapter 4). However article 39(1)(b) adds that, in relation to children, the police may refuse to grant bail following charge where the custody officer has reasonable grounds for believing that the child ought to be detained in his or her own interests. The police must then make arrangements for the child to be taken to a place of safety (the definition of which includes the Juvenile Justice Centre) so that the child can be detained there. The CJCO 1998 also provides at article 6 that the police shall release a child arrested in pursuance of a warrant where the child, or the child’s parent or guardian, enters into a recognisance for such amount as the custody officer considers will secure the attendance of the child at the hearing of the charge. This does not apply where the child is arrested for an indictable (ie serious) offence, or where the custody officer considers that for the protection of the public the child should not be released. Article 7 applies the same rule to children who are under the age of 14 and are arrested without a warrant for an offence other than homicide. If the child is not released under this article, article 8 states that he or she must be brought before a youth court as soon as practicable and in any case within 36 hours from the time of the arrest. The child should be moved to the Juvenile Justice Centre before being brought before the court. Article 12 of the CJCO provides that a court shall release a child on bail unless a number of factors apply. First, the court must consider it necessary to remand the child in custody in order to protect the public. The child must also have been

Children’s Rights

471

charged with a sexual or violent offence or with an offence for which an adult would be liable on conviction to imprisonment for 14 years or more. Alternatively, the offence charged must be an indictable offence and the child must either have been on bail on any date on which they are alleged to have committed the offence or have been found guilty of an indictable offence within the period of two years ending on the date on which they were charged with the present offence. If a court decides not to release a young person under this provision, children under 17 must be committed to the Juvenile Justice Centre, unless the court considers, in the case of a 15- or 16-year-old, that they are likely to injure themselves or others, in which case the child is committed to the Young Offenders Centre (art 13(1)(a) and (1A)). If a child is refused bail by a youth court, a fresh application for bail can be brought before the High Court. Children who have reached the age of 17 should be committed to the Young Offenders Centre or, in certain strict circumstances, to the Juvenile Justice Centre. The conditions which must be fulfilled before children can be committed to the Juvenile Justice Centre are that the child was less than 17 years and six months old at the time of the first decision not to release them on bail, that they have not had a custodial sentence imposed upon them in the last two years, and that the court, after considering a report made by a probation officer, considers that it is in the child’s best interests to be so detained (arts 13(1)(b) and 13(1B)). Girls aged 17 cannot be committed to the Young Offenders Centre and must be sent to the Juvenile Justice Centre, as a result of the Secretary of State previously having exercised the power under article 13(1BB) of the CJCO to notify the courts that no suitable accommodation for that group of children was available in the Young Offenders Centre. In fact, since 1 November 2012 no children under the age of 18 have been detained in the Young Offenders Centre and it is intended that this will be the position in the future save in exceptional circumstances.

Diversion A Youth Diversion Scheme is in place to divert children aged 10–17 away from the formal criminal justice system and from re-offending. Youth diversion officers work in partnership with probation officers, social services and education and voluntary bodies in every police district. They review all cases of offending by children and make recommendations as to how they should be dealt with. Prosecutors make the final decision on which course of action to take. In relation to non-offending behaviour, an officer identifying a child as engaging in activities which he or she believes may place the child at risk of offending can provide the child with ‘informed advice’. The details of what happened will be sent to the youth diversion officer, who will maintain a register of such incidents. If three referrals involving the same child are received within 12 months, the child’s parents will be asked to agree to the child being referred to a multi-agency panel to

472

The Children’s Law Centre

consider what action could be taken or services offered to help the child or his or her family. The informed advice records are weeded from the system after 12 months, provided no further referrals are received. A variety of other options exist to divert children and young people them from the formal court process. Some are administered by the police and others by the Public Prosecution Service (PPS). The police can use a disposal known as ‘discretion’, which means that the matter will not be referred to the PPS and so not go to court. This is as an alternative way of dealing with crimes that are comparatively less serious and have less impact on those involved, such as minor shop-lifting. Discretion might comprise any number of actions, including a verbal or written apology, completing unpaid work, repairing any damage caused, making a payment to cover the cost of repair, or entering into a written agreement to alter their behaviour. In deciding whether to offer discretion to a child or young person, the PSNI guidance indicates that discretion is most appropriate for those suspects who have little or no offending history. Investigating officers are expected to consult with victims and to use their professional judgement to determine satisfactory outcomes that are proportionate to the incident or crime. There must be a clear and reliable admission of guilt, there must be sufficient evidence to bring a reasonable prospect of conviction, and the investigating officer must believe that it is the appropriate and right thing to do in the public interest. PSNI guidance provides that a suspect must be cautioned under article 3 of the Criminal Evidence (NI) Order 1988. If the child or young person admits the offence and is willing to accept a discretionary disposal, the investigating officer must explain the details of the outcome (already agreed with the victim) and seek the suspect’s agreement to the outcome. It should also be explained that if the child or young person does not complete their part of the agreement the matter will be referred to the youth diversion officer. If the child or young person refuses to take part in the discretionary disposal, the matter should be referred to the PPS. The process requires the consent not just of the child or young person, but also of an appropriate adult; the victim of the offence in question should also be asked to consent, but has no right of veto. Accepting a discretionary disposal does not constitute a criminal conviction and so the disposal is not routinely disclosed. It may, however, be disclosed as part of an enhanced criminal record check. The disposal remains active for 12 months from the date of completion of reparation and may be used to inform a decision as to future disposals should the person commit further offences. This must be explained to the suspect when he or she is asked to accept a discretionary disposal.

Decisions by the Public Prosecution Service Other diversionary options that are available in cases involving children and young people require decisions to be taken by the PPS. These include informed

Children’s Rights

473

warnings, restorative cautions and diversionary youth conferences. The PPS Guidelines for Diversion provide that these options can be considered by the PPS only after it is satisfied that the evidential test for prosecution is met, which requires that the evidence which can be adduced in court is sufficient to provide a reasonable prospect of conviction. Consideration must also be given to whether prosecution is required in the public interest. Whether diversion is deemed appropriate will generally depend on the seriousness and circumstances of the offence and the circumstances as well as the profile of the offender. For diversion to be directed, the child must admit the offence. If the offence is relatively minor it may be appropriate to direct an informed warning or caution, even if the offender has previously had the benefit of diversion. An informed warning is not a conviction but is recorded on a person’s criminal record for a period of 12 months. A police officer who is a trained facilitator will conduct the informed warning meeting at a police station. The PPS Guidelines for Diversion state that an important element of the process is to expand the child’s understanding of the impact of the crime and to identify what actions may be taken to repair the harm caused. A restorative caution is administered by a trained facilitator who may or may not be a police officer, but a police officer must be present. The aim is to provide an opportunity for the offender to meet the actual victim and affected members of the community, but if the offender refuses to meet the victim, or the victim declines to attend in person, this does not affect the decision to dispose of the matter by way of a caution. As with informed warnings, the child and his or her parent or guardian will be required to sign a certificate acknowledging their understanding of the consequences of the disposal and giving their informed consent to it. A restorative caution is not a conviction, but is recorded for a period of 30 months on a child’s or young person’s criminal record. If the offence is more serious it may be appropriate to direct a youth conference, even for a first offence. These are provided for by article 10A of the CJCO 1998. They may involve a number of parties and must include the child, an appropriate adult, the police and a Youth Justice Agency coordinator (art 3A). The victim of the offence is also entitled to attend, as is a legal representative of the child. Under article 10A the child must first admit the offence and provide informed consent to the conference taking place. The child is given the opportunity to discuss the offence and what can be done to repair the harm caused to the victim, and the victim is given the opportunity to explain the impact of the offence. After the conference the coordinator can either recommend to the PPS that no further action be taken against the child, that court proceedings be instituted, or that the child be subject to a youth conference plan (art 10A).The child must first agree to any youth conference plan, as must the PPS. It will be in place for up to a year (art 3C). If the child fails to fulfil his or her responsibilities under the plan to a significant extent, criminal proceedings can be commenced. Again, a diversionary youth conference is not a conviction, but is recorded on a person’s criminal record for 30 months.

474

The Children’s Law Centre

If a child or young person does not accept diversionary disposal, or if the PPS does not approve a youth conference plan, the matter will be returned to the PPS to consider prosecution.

The Youth Court If a child’s case is not diverted from the formal court process, a prosecution will generally take place in the youth court. In 2013, there were 2,241 defendants received into the youth court, a 7% decrease from the 2,413 received in 2012. Legal aid is available to children being prosecuted in the youth court to allow them to obtain legal representation. Eligibility is assessed by the court on the basis of the child’s means and on whether it is in the interests of justice to provide free legal aid. Applications are made via a solicitor. The youth court consists of three members, at least one of whom must be female. Two of the members will be lay magistrates but the chairperson will be a district judge. The decision of the court is by the majority of the members, but if only the chairperson and one lay magistrate attends the decision in the event of a disagreement the decision is taken by the chairperson. Article 5 of the CJCO 1998 prohibits the words ‘conviction’ and ‘sentence’ being used in relation to children dealt with in the youth court. Instead the correct terminology is ‘a finding of guilt’ and ‘an order made upon a finding of guilt’. Article 27(4) of the CJCO 1998 requires youth court proceedings to be held in private, with only a limited number of persons allowed to attend. Whilst representatives of news agencies and newspapers are entitled to attend, article 22(2) provides that no report can be published which is likely to lead to the identification of the child. The court or the Department of Justice may dispense with this prohibition when satisfied that it is in the interests of justice to do so. Article 22(1) provides that where a child is concerned in any criminal proceedings other than in the youth court (or on appeal from that court) the court may direct that no report shall be published which includes the above information and that no picture shall be published of the child. Article 15 of the CJCO 1998 provides that parents may be required to attend during any or all stages of court proceedings. Under article 17 of the CJCO 1998 the youth court can deal summarily with any case where a child is charged with any indictable offence (except homicide), provided certain conditions are fulfilled. These include that the court thinks it expedient to deal with the case summarily, that the parent or guardian of a child under the age of 14 or, where the child is over the age of 14, the child, consents to the case being dealt with summarily, and that the prosecution consents. Following a finding of guilt, the youth court has the same sentencing powers as would exist if the Crown Court were dealing with the child. Conversely, if the child is convicted in the Crown Court instead of the youth court, the Crown Court can remit the child to the youth court to be sentenced there (art 32).

Children’s Rights

475

The Right to Fair Participation in a Trial Certain requirements must be met if a court hearing involving children is to comply with the right to a fair trial conferred by Article 6 of the ECHR. The case must be dealt with in a manner which takes full account of the child’s age, level of maturity and intellectual and emotional capacities, and steps must be taken to promote the child’s ability to understand and participate in the proceedings (T and V v UK, 2000). The child must also understand the significance of any penalty which may be imposed. In SC v UK (2005) the child was sentenced to detention for two-and-a-half years, but at no stage understood that he risked a custodial sentence and when he was taken into the holding cells after being sentenced he still expected to go home with his foster father. The European Court of Human Rights held that the child had not been able to participate in the trial to the extent required by Article 6. In England the High Court has specified that a number of measures should always be taken to ensure that a child receives a fair hearing. These include keeping the child’s level of cognitive functioning in mind, using concise and clear language, having regular breaks, taking additional time to explain court procedures, being proactive to ensure that the child has access to support, ensuring the child understands the charge and possible outcomes, and ensuring that cross-examination is carefully controlled so that questions are short and clear and frustration is minimised (TP v West London Youth Court, 2005). In 2011 the Lord Chief Justice of Northern Ireland issued a Practice Direction on the ‘Trial of Children and Young Persons in the Crown Court’. Part of its overriding principle is that all possible steps should be taken to assist the young defendant to understand and participate in the proceedings.

Orders Made upon a Finding of Guilt Where a finding of guilt is made against a child or young person within the courts, there are a wide range of orders which can be imposed on them. The factors deemed relevant when dealing with cases involving adults also apply to cases involving children, such as aggravating and mitigating features in the case, the point at which the defendant admitted guilt, and any previous finding of guilt or diversion relating to the child. One option is for the court to make a youth conference order (see page 473). The court is actually required to refer the case to a youth conference coordinator in certain circumstances (art 33A of the Criminal Justice (NI) Order 1996 (CJ(NI)O), but it cannot refer a case if it proposes to deal with the child by making an absolute or conditional discharge, discussed below (art 33C(5)). Where a recommendation is made to the court by the youth conference coordinator that a child be made the

476

The Children’s Law Centre

subject of a youth conference plan, the court may proceed to make a youth conference order under article 36J of the CJCO 1998, provided the child consents. Under Schedule 1A to the 1998 Order the courts have a range of powers to deal with a child who does not comply with the terms of a youth conference order.

Community Orders, Fines and Discharges The most common orders made upon findings of guilt in the youth courts are community orders, that is, orders relating to the management of offenders in the community, such as a probation orders, community service orders, and combination orders. The courts are generally required to consider a pre-sentence report before forming an opinion as to the suitability of the offender for such orders, although there are circumstances in which a court may decide not to do that (art 9 of the CJ(NI)O 1996). Probation orders are provided for under article 10 of the 1996 Order. They require the child to be placed under the supervision of a probation officer for a period of not less than six months and not more than three years, with the basic condition being that the child keeps in touch with the probation officer as required by the officer and notifies that person of any change of address. More specific conditions can be added to the order to deal with particular problems the child is facing, such as alcohol dependency. Before making a probation order the court must obtain the consent of children aged 14 or over. Failure to comply with the probation order can lead to the Probation Service applying to bring the matter back to court for the issue of stronger orders (Sch 2 to the 1996 Order). Under article 13 of the 1996 Order a community service order can be imposed only on children aged 16 or over. These children undertake unpaid community service work for a minimum of 40 hours and a maximum of 240 hours. The offence must be one which is otherwise punishable by imprisonment and the child must consent to the order. The work should be scheduled by the probation officer, so far as is practicable, to avoid any interference with the child’s religious beliefs, job or education (art 14). Any failure to comply with the order is dealt with in much the same way as failure to comply with a probation order. The 1996 Order also provides for combination orders, which combine probation with community service. The court can make these where it is of the opinion that they will secure the rehabilitation of the child, prevent or reduce offending behaviour and protect the public (art 15). Such orders can be applied only to children aged 17 or 18. The probation supervision period must be for a minimum of 12 months, but cannot exceed three years, and the community service element must be at least 40 hours but no more than 100 hours. Another community-based penalty available to the youth court is the attendance centre order. This directs children to attend a centre for up to 24 hours. A failure to attend for the required number of hours or to comply with the centre’s rules without a reasonable excuse can result in the child being brought back to

Children’s Rights

477

court (art 38). A parent or guardian can be required to enter into a recognisance, meaning that a sum of money will have to be paid if the child does not comply with the attendance centre order. There are other options open to the courts short of imposing custody on a child or young person. Children can be fined, although there are limits to the size of fines (art 34). Under article 35 of the CJCO 1998, if the child is under the age of 16 the fine must be paid by the child’s parent or guardian, unless the court is satisfied that there is a good reason for not requiring this. Where the child is over the age of 16, the court may impose the fine on the parent or guardian. Article 36 again allows the court to order that a parent or guardian of a child enter into a recognisance as security for a child’s good behaviour. Absolute and conditional discharges can also be used in relation to children and young people (art 4 of the CJ(NI)O 1996). They can be imposed where the court, having regard to the circumstances of the offence and the character of the offender, considers that it is inexpedient to inflict punishment. An absolute discharge imposes no penalty. A conditional discharge leaves open the prospect of a penalty being imposed in the future, as it permits the court to set a period of time (up to three years) after which no penalty can be imposed, provided the child or young person commits no further offence within that period.

Custodial Orders If the court decides to place the child in custody, there are several options available, although changes to the arrangements have recently been consulted upon by the Department of Justice. Under article 39 of the CJCO 1998 the courts can impose a Juvenile Justice Centre order (JJC order) for an offence punishable in the case of an adult with imprisonment (unless it is an offence for which the mandatory punishment is imprisonment for life). The JJC order provides that the child shall be subject to a period of detention in the Juvenile Justice Centre followed by a period of supervision in the community. It generally lasts for six months, but can be made for up to two years. The child serves one-half of the period in detention, during which time the managers of the centre have parental responsibility for the child (art 53 of the CJCO 1998). When released from custody the child comes under the supervision of a probation officer (art 40). If the child breaches the terms of the supervision without reasonable excuse he or she may be brought back before the court, which can then impose a fine or order the child to be detained in the Juvenile Justice Centre for a period not exceeding 30 days (art 41). The powers of the courts are currently limited as regards making JJC orders for children aged 17. They can make such an order only if the 17-year-old will not turn 18 during the period of the order and has not received a custodial sentence within the last two years. It must also be in the child’s best interests to make the order. The court can also make the order if it has been notified by the Department of Justice that no suitable accommodation for the 17-year-old is available in the Young Offenders Centre.

478

The Children’s Law Centre

If a JJC order is not imposed, one of the other custodial orders available to the courts is a Young Offenders Centre order (YOC order). This places children in custody in the same facility as young adults. Section 5 of the Treatment of Offenders Act (NI) 1968 provides that a YOC order can be applied in relation to children from the age of 16 where they have been found guilty of an offence which would be punishable by a term of imprisonment for a person aged 21 or over and where the court considers that a period of detention should be served. The maximum period of detention which can be imposed is four years, or the maximum term of imprisonment which the court could impose for the offence in the case of a person aged 21 or over, whichever is the lesser. Remission can be applied to a YOC order, thereby reducing the detention period by up to 50 per cent (rule 30 of the Prison and Young Offenders Centre Rules (NI) 1995). The courts can also suspend a period of detention under a YOC order (s 18 of the 1968 Act). This allows the court to order that the order shall not take effect unless, during a specified period, the young person commits another offence punishable with imprisonment. There are other circumstances in which children can be detained in the Young Offenders Centre. The current law still provides that children aged 15 or over who are detained in the Juvenile Justice Centre can be transferred to the Young Offenders Centre, subject to the approval of the youth court, where it is considered that the child is likely to injure themselves or others. Children aged 16 or over can be detained in the Young Offenders Centre where they have failed to pay a fine or other financial order, or have been found to be in contempt of court, and where the court has certified that their behaviour is such that no other method of dealing with them is appropriate. The period of detention cannot exceed the maximum period the child would have to serve in prison if they were an adult, and cannot exceed one month on any one occasion (arts 47–48 of the CJCO 1998). The detention of children in the Young Offenders Centre has been the subject of criticism due to the provisions of the UN Convention on the Rights of the Child. This requires children to be separated from adults when deprived of their liberty, unless it is in the child’s best interest not to do so (Art 37(c)). In its last examination of the UK’s compliance with the CRC, the United Nations Committee on the Rights of the Child recommended that the UK should ensure that, unless it was in their best interests, every child deprived of their liberty should be separated from adults in all places of deprivation of liberty. However, as already noted, since 1 November 2012 no children have been detained in the Young Offenders Centre and this is to remain the position, save possibly in ‘exceptional circumstances’.

Serious and Specified Offences Various other orders can be made to detain children in custody where they have been found guilty of ‘serious’ or ‘specified’ offences listed in Schedules 1 and 2 to the Criminal Justice (NI) Order 2008. These are generally violent or sexual offences. In deciding what option to impose under the 2008 Order where a finding

Children’s Rights

479

of guilt has been made against a child for a serious offence, the court must first consider whether there is a significant risk to members of the public of serious harm occasioned by the commission by the child of further specified offences (art 13). If the court is of the opinion that there is such a risk, and the offence for which the child has been found guilty is one which carries a life sentence, it may impose a life sentence (art 13(2)). Under article 45 of the CJCO 1998 this means that the child will be ‘detained at the pleasure of the Minister of Justice in such place and under such conditions as the Minister of Justice may direct’. In other cases under the 2008 Order where the court does not impose a life sentence, an indeterminate custodial sentence or an extended custodial sentence can be applied. The former is the harsher of the two penalties, as it is imposed where the court does not think that an extended custodial sentence would be adequate to protect the public from serious harm. The court sets at least two years in custody as the minimum period for this sentence, but under article 18 the person serving the sentence is released after this period only if the Parole Commissioners direct the release. Once released, the person will remain on licence for the rest of their life, unless they successfully apply for the licence to cease to have effect (art 22). If the court decides that an extended custodial sentence would be adequate for the protection of the public, this must be imposed (art 13). Article 14 provides that an extended custodial sentence must be imposed where a child is found guilty of a specified offence and where the court is satisfied that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences. If the offender is under the age of 21, an extended custodial sentence is a sentence of detention at such place and under such conditions as the Minister of Justice may direct. The length of the sentence is described as being equal to the sum of the appropriate custodial term and a further period (‘the extension period’) for which the offender is to be the subject of a licence and which is of such length as the court considers necessary for the protection of members of the public. The extension period must not exceed five years in the case of a specified violent offence and eight years in the case of a specified sexual offence and the term of an extended custodial sentence in respect of an offence must not exceed the maximum term available for that offence. Article 18 of the 2008 Order provides that once one-half of the period determined by the court as the appropriate custodial term has been served, the person subject to the sentence can be released if the release has been directed by the Parole Commissioners. Persons released on licence under indeterminate custodial sentences and extended custodial sentences can have their licences revoked and be recalled to custody under article 28 of the 2008 Order. Article 45 of the CJCO 1998 provides the courts with an additional option in relation to the punishment of certain grave crimes. Where a child is convicted of any offence punishable in the case of an adult with imprisonment of 14 years or more (except mandatory life imprisonment), the court can sentence the child to be detained for such period as may be specified in the sentence. The court must

480

The Children’s Law Centre

specify part of the sentence as ‘the relevant part’ for the purposes of article 46, which deals with release of the child on licence. As soon as the child has served the relevant part of the sentence and the Parole Commissioners have directed their release on licence, the child must be released.

Appeals from the Youth Court Where a finding of guilt is made against a child in the youth court, the defendant has an automatic right of appeal. This can be an appeal against the finding of guilt or against the order made upon the finding of guilt, or both. The prosecution cannot appeal. The child’s appeal is to a county court, where the judge will sit with two lay magistrates. If the appeal is against the finding of guilt there is a complete rehearing of the case. If a finding of guilt is once again made, or when the appeal is against an order made upon a finding of guilt in the youth court, the county court judge can impose a different order upon the child, including a more severe order (art 28 of the County Courts (NI) Order 1980).

Useful Contacts Barnardo’s 542–544 Upper Newtownards Road Belfast BT4 3HE tel: 028 9067 2366 www.barnardos.org.uk Children in Northern Ireland (CiNI) Unit 9, 40 Montgomery Road Belfast BT6 9HL tel: 028 9040 1290 www.ci-ni.org.uk Children’s Law Centre Philip House, 3rd floor 123–137 York Street Belfast BT15 1AB tel: 028 9024 5704 freephone: 0808 808 5678 (Children and young people’s legal advice and information) www.childrenslawcentre.org Include Youth Alpha House

Children’s Rights 3 Rosemary Street Belfast BT1 1QA tel: 028 9031 1007 www.includeyouth.org Northern Ireland Guardian Ad Litem Agency Centre House 79 Chichester Street Belfast BT1 4JE tel: 028 9031 6550 www.nigala.hscni.net NSPCC 1st floor, Unit 7 The Lanyon Building Jennymount Business Park North Derby Street Belfast BT15 3HN tel: 028 9035 1135 www.nspcc.org.uk Office of the Police Ombudsman New Cathedral Buildings Writers’ Square 11 Church Street Belfast BT1 1PG tel: 028 9082 8600 www.policeombudsman.org Save the Children Northern Ireland Popper House 15 Richmond Park Belfast BT10 0HB tel: 028 9043 1123 www.savethechildren.org.uk Voice of Young People in Care (VOYPIC) 9–11 Botanic Avenue Belfast BT7 1JG tel: 028 9024 4888 www.voypic.org Youth Justice Agency 41 Waring Street Belfast BT1 2DY tel: 028 9031 6400 www.youthjusticeagencyni.gov.uk

481

22 Education Rights LAURA LUNDY, GRÁINNE MCKEEVER AND VIVIANE TREACY

This chapter describes some of the legal obligations on schools as well rights that parents and their children have while children are of compulsory school age. It does not cover pre-school or third-level education. The chapter begins with an overview of the Northern Ireland school system. This is followed by a summary of education obligations and rights in domestic law and a summary of relevant international human rights law.

Educational Provision in Northern Ireland The Department of Education has overall responsibility for the provision of education in Northern Ireland. Currently, five Education and Library Boards (ELBs) contribute to planning the provision of schools in their area and must secure ‘sufficient schools’, that is, ‘sufficient in number, character and equipment to afford all pupils opportunity for education offering such variety of instruction and training as may be desirable in view of their different ages, abilities and aptitudes’ (art 6 of the Education and Libraries (NI) Order, 1986 (1986 Order)). ELBs also have general functions with regard to the administration, maintenance and funding of education and specific functions as an upper tier of management for controlled schools in their area. As part of the general review of public administration, there were proposals to abolish the ELBs and replace them with a single body, the Education and Skills Authority (ESA). But in May 2014 the Minister decided to drop the proposed ESA and to establish one large ELB instead. The 1986 Order provides that pupils should be educated according to the wishes of their parents, so long as this is ‘compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure’ (art 44). There is, however, no agreed definition of ‘unreasonable public expenditure’ or of how parents’ wishes should be ascertained. Any proposal to change the existing provision of schools which affects educational access, such as the closure of schools or the establishment of, or refusal to establish, new schools (such as Irish-medium or integrated schools) needs to have the approval of the Department of Education.

484

Laura Lundy, Gráinne McKeever and Viviane Treacy

Over 95 per cent of Catholic pupils attend Catholic maintained schools and a similar proportion of Protestants attend state or controlled schools. The integrated sector caters for around 6 to 7 per cent of pupils. Secondary education is largely determined by a selective process, with separate grammar or secondary provision according to pupils’ performance in transfer examinations taken during the last year of primary school. Broadly speaking, there are seven types of schools in Northern Ireland, as outlined below.

Controlled Schools Controlled schools are provided and managed by ELBs. They comprise nursery schools, primary schools, secondary schools (including 18 controlled grammar schools) and special schools, and they cater for around 43 per cent of all pupils in Northern Ireland. The controlled sector is meant to provide non-denominational ‘state’ education, but in practice the schools are attended mainly by Protestant pupils. Boards of governors of controlled primary and secondary schools include members nominated by the Protestant churches (Transferors). The Transferors Representatives’ Council represents the four main Protestant churches in the management of controlled schools.

Catholic Maintained Schools Catholic maintained schools are provided by the Roman Catholic diocesan authorities. They include nursery, primary and secondary schools as well as some special schools, and they provide approximately 38 per cent of all school places in Northern Ireland. Boards of governors include diocesan trustees appointed by the Council for Catholic Maintained Schools (CCMS). The CCMS is a statutory body which provides support and protection for the ethos of the schools in the Catholic maintained sector and appoints and employs teachers. No pupil may be refused admission to a voluntary maintained school on religious grounds, but the schools are attended mainly by Catholic pupils.

Voluntary Grammar Schools Voluntary grammar schools are provided by self-governing non-denominational or denominational trusts or religious orders. Voluntary grammar schools select pupils on the basis of academic ability. They provide around one-third of postprimary places. Of the 54 voluntary grammar schools, 32 are Catholic and 22 are non-Catholic, mainly Protestant, and many of the latter have private ‘prep’ (ie preparatory) departments. The boards of governors of voluntary grammar schools include a majority of representatives from trustees or denominational

Education Rights

485

authorities, as well as representatives of the Department of Education (or ELBs). The interests of voluntary grammar schools are represented by the Governing Bodies Association.

Grant-maintained Integrated and Controlled Integrated Schools Around 6 to 7 per cent of pupils are educated in integrated nurseries, primary and secondary schools or colleges. Such schools are required to ‘attract reasonable numbers of both Protestant and Roman Catholic pupils’ (art 66(2) of the Education Reform (NI) Order 1989). Integrated education is not defined any further in the legislation, but the schools try to maintain at least a 60:40 balance between the two main ethno-religious traditions amongst teaching staff and governors as well as pupils. There are two types of integrated school: grant maintained integrated (GMI) schools, which are self-governing; and controlled integrated schools, which are under the control of ELBs. Integrated schools are represented by the Northern Ireland Council for Integrated Education (NICIE). This receives funding from the Department of Education to ‘encourage and promote the development of integrated education’ and operates a trust fund to assist new GMI schools. These are eligible for full recurrent funding and capital expenditure (where approved), once they meet prescribed criteria concerning minimum enrolment and admissions numbers.

Irish-medium Schools There are currently 23 Irish-medium primary schools (bunscoilleanna) and three Irish-medium secondary schools (meanscoilleanna), plus a significant number of Irish-medium nursery and pre-school groups. Irish-medium education is also provided in Irish speaking streams in mainstream schools. As with integrated schools, new Irish-medium schools are eligible for full recurrent funding and capital expenditure once they meet prescribed criteria, but they often operate as independent schools until they achieve the required minimum enrolment and admissions numbers and can apply for voluntary-maintained or controlled status. Irish-medium education is represented by Comhairle na Gaelscolaiochta, which receives funding under the 1998 Order to encourage the development of Irish language schools.

Independent Schools There are a small number of independent schools providing full-time education outside state control for pupils of compulsory school age. They are not grantaided and are not required to comply with Education Orders except with respect

486

Laura Lundy, Gráinne McKeever and Viviane Treacy

to human rights standards, registration with the Department and the maintenance of minimum requirements as to premises, accommodation and efficient and suitable instruction having regard to the ages, sexes and abilities of the pupils.

Special Schools ELBs and the CCMS provide a range of separate special schools and special units within mainstream schools for children with special educational needs. They are managed by boards of governors including representatives of parents, teachers and the ELB or trustees.

Compulsory School Age Children are of compulsory school age between four or five and 16 years. The precise cut-off dates are as follows: — for children whose fourth birthday occurs on or before 1 July, compulsory school age is from the following 1 September; children whose birthdays fall between 2 July and 31 August are deemed not to be of compulsory school age until 1 September of the next year. and — for children whose sixteenth birthday occurs before 1 July, the upper limit of compulsory school age is at the end of their current school year (art 156 of the Education Reform (NI) Order1989). Northern Ireland has one of the lowest school starting ages in the world. Although primary schools follow a revised, play-based curriculum in the first two years, the legislation does not provide any discretion for parents to hold their children back a year, which means that some children have to start school just after they have turned four years of age, even though their parents may not think that they are ready for formal education. Following a campaign by parents, in 2013 the Minister for Education committed to reviewing current provision to give parents the option to defer the child’s entry for a year.

Attendance at School Parents have a duty to ensure that all children of compulsory school age receive ‘sufficient full-time education suitable to their age, ability and aptitude, and any special educational needs they have, either by regular attendance at school or otherwise’ (art 45 of the 1986 Order). ‘Parent’ includes a guardian and every person who has actual custody of a child or young person.

Education Rights

487

Regular school attendance is seen as both a measure of school effectiveness and of parents’ compliance with their obligation to ensure their child receives a suitable education. Schools must keep a register of pupils’ attendance and a school can authorise absence in the following instances (see art 48 of the 1986 Order): — sickness (medical certificate required) or other unavoidable cause (such as a religious day of observance, for which permission must be obtained); — where there is an absence of arrangements for transporting the child to the nearest ‘suitable school’ and the child is outside the statutory walking distance (or there is some transport but the child still has to walk this distance); — the child is employed on work experience; or — the parent can prove that he or she is engaged in a trade or business which requires him or her to travel and the child has attended school as regularly as the trade or business permitted and for at least 100 days during the last 12 months. Parents can discharge their obligation under article 45 by educating their children at home. In such cases the education must be approved by the Department of Education and the local ELB must be satisfied that it is ‘suitable for the child’s age, ability and aptitude, and any special educational needs he or she has’. The emphasis is on the suitability of the education rather than on whether it is similar to that which would be received in school.

Persistent Absence Schools must inform the ELB if a pupil does not attend regularly and has no reasonable excuse. Regular attendance is not defined, but education welfare officers (EWOs) consider absence to be serious if it is above 15 per cent. Schools themselves have no legal means of dealing with unauthorised absence but they can encourage better attendance by investigating the reason for unexplained absences, by providing additional support for pupils and by regular contact with parents. ELBs can seek legal enforcement of school attendance in two ways: through school attendance orders (where the child is not registered in a school) and education supervision orders (where they are).

School Attendance Orders If a child has not registered at a school, an ELB may serve a written notice requiring a parent to satisfy it within 14 days that a child is receiving a suitable education and it may send an education welfare officer to the home to investigate. If the parents cannot satisfy the ELB and it is believed to be expedient that the child should attend school, the ELB must give 14 days’ notice to the parents of its intention to serve a school attendance order on the parents requiring the pupil to become a registered pupil at a named school. Parents may, within the time limit of the

488

Laura Lundy, Gráinne McKeever and Viviane Treacy

notice, apply for the child to be admitted to another grant-aided or independent school. There is no provision for the child’s views to be sought. A school attendance order must continue in force, unless amended by the ELB, for as long as the child is of compulsory school age or until he or she would normally leave the specified school. Parents may apply for the order to be revoked if arrangements have been made for suitable education otherwise than at school. If this is refused they can appeal to the Department of Education.

Education Supervision Orders Where a child is a registered pupil at a school but does not attend regularly (or is the subject of a school attendance order which is not being complied with), the ELB can seek an education supervision order (ESO) at the family proceedings court (art 55 of the Children (NI) Order 1995). This has the effect of transferring to the ELB the duty and rights of the parents to secure the child’s education. In practice, ESOs are not used frequently by ELBs. When making an ESO the court has a duty to consider the child’s welfare as paramount (art 3). An education supervisor is appointed to ‘advise, assist and befriend the child and to give directions to the child and his or her parents’ in a way that will (in the opinion of the supervisor) ensure that he or she is properly educated. The supervisor must first ‘ascertain the wishes and feelings of the child and his or her parents, including their wishes about where the child is to be educated’ and ‘give due consideration, having regard to the child’s age and understanding’ to such wishes. Directions might include requiring the parents to escort the child to school or keeping the supervisor informed of any change of the child’s address (especially if an older child might abscond from home). Parents are guilty of an offence if they fail to comply, unless they can show that the direction was unreasonable or that they took all reasonable steps to comply. An ESO is initially made for one year. It may be extended (for up to three years) provided this is done three months prior to the date of expiry. The child, his or her parents or the ELB may apply to a court to discharge an ESO if it is established that he or she is receiving a suitable education. An ELB may also apply for the ESO to be terminated if it believes it has failed. The court may then direct social services to investigate the child’s circumstances, which may, in exceptional circumstances, result in a care order, removing the child from the care of his or her parents (see Chapter 21).

School Admissions Parents have the right to state their preference for any grant-maintained school they would like their child to attend (art 9 of the Education (NI) Order 1997).

Education Rights

489

The first and each subsequent preference is taken as a separate application for admission; if it is refused, the next preference is considered to be a first preference. A school must generally admit a pupil whose parents apply for a place if it has room. The Department of Education determines each school’s total enrolment number and admissions number (the latter being the maximum first year intake). Schools may not exceed their enrolment and admissions numbers in any school year except to admit a child with a statement of special educational needs or a school attendance order or to comply with a direction of an Appeals Tribunal or the Department of Education. Schools must draw up admissions criteria to be applied where the school is oversubscribed. Admissions criteria must give the order of priority for admission and must be capable of selecting pupils right down to the very last place. Schools have a duty to verify qualifying information for admissions criteria, such as the applicant’s address, age, relationships or whether they are registered as having free school meals entitlement. The criteria that can be used differ according to the type of school and are set out below.

Nursery Schools Nursery admissions procedures, including admissions to separate nursery schools, nursery units attached to primary schools and voluntary places under the Pre-school Education Expansion Programme (PSEEP) are coordinated by ELBs. Shortage of places in some areas may mean only part-time places are available. Some primary school reception classes enrol children when they reach their fourth birthday, but such classes may not exceed 30 children and the government is proposing to restrict the practice. If nursery schools and units are oversubscribed they must currently first give priority to those who otherwise do not have a pre-school education place (fulltime or part-time) and are children from socially disadvantaged circumstances who will reach the age of four before 1 September in their final pre-school year (‘socially disadvantaged’ refers to children whose parents are in receipt of income support or income-based jobseeker’s allowance and whose application form is endorsed by the Social Security Agency). Nursery schools are no longer required to give priority to the oldest children who apply. Nursery schools or units may apply their own additional published sub-criteria to allocate places if they are still over-subscribed. These may include giving priority to children in their final preschool year if they have special education needs (ie ‘significantly greater difficulty in learning than the majority of children of their age’) or taking into account the distance of the child’s home from the school and any family connection with the school. Parents may appeal to an Appeal Tribunal against a decision to refuse admission if they think the admissions criteria were not correctly applied (see page 493).

490

Laura Lundy, Gráinne McKeever and Viviane Treacy

Primary Schools Primary school admissions are coordinated by the ELBs. Parents are asked to name their preferred schools in order of preference on the standard application form. They should include all the details which they wish to be taken into account concerning their child’s application, including written confirmation of any special circumstances, any reasons for the preferred school and details of any siblings already attending the school. Transport assistance to a grant-aided school may be provided by ELBs if the school is more than two miles from a pupil’s normal residence. However, assistance will be provided only if a place has been sought and admission refused at all suitable schools in the same category which are within the two-mile statutory walking distance. Boards of governors of primary schools must apply their published criteria to allocate places if they are over-subscribed. Primary schools must: — give priority to children resident in Northern Ireland over children not resident at the time of the proposed admission; — give priority to children who will have obtained compulsory school age; — not select pupils by reference to ability, aptitude or performance in a test or examination held by, or on behalf of, the board of governors; and — not admit more than 30 pupils in any Primary 1 to Primary 4 class. Primary schools’ sub-criteria typically include siblings already at the school, children who have attended any attached nursery, children of staff employed at the school, residence in one or more parishes connected with the school or in a traditional catchment area, other family links with the school, and the distance of the pupil’s home from the school. Parents may appeal to an Appeal Tribunal against a decision to refuse admission if they think the school did not apply, or did not correctly apply, its admission criteria (see page 493).

Post-primary Schools Most areas within Northern Ireland have a post-primary school system where some schools (grammar schools) select on the basis of academic ability. Only a small number of areas offer a choice of non-selective or delayed selection schools. Boards of governors of post-primary schools must draw up the admissions criteria to be applied if they are over-subscribed according to the regulations. Admissions criteria for pupils joining year eight, years nine to 12 and the sixth form must be published. All post-primary schools are required to draw up admissions criteria to ensure that they can select children down to the last available place. They are also required to give priority to children resident in Northern Ireland over children

Education Rights

491

not resident at the time of the proposed admission. However, at the time of writing there are no other specific requirements for post-primary schools as the Department of Education has not published secondary schools admission criteria. This arises from an ongoing political dispute about the use of criteria that use academic ability as a basis for selection for grammar schools. Legislation prohibiting grammar schools from using ability testing to determine admission was put on hold as a result of the St Andrew’s Agreement in 2006. Since that time, the Minister for Education has been from Sinn Féin and that party is opposed to a selective system. The Department has declined to issue regulations or to authorise a central transfer procedure test. The Department of Education issues guidance for schools on its admissions criteria and schools are required by law to have regard to this guidance. At the time of writing the guidance recommends that schools should: — give priority to children who: have a free school meals entitlement, have a sibling currently attending the school, are the eldest child of a family, are from a named feeder school, parish or catchment area, or are children for whom this school is the nearest suitable school; and the schools should have a ‘tie breaker’ (ie criteria which are capable of selecting pupils down to the last available place, such as alphabetic order or randomised selection); and — not use criteria which prioritise applicants according to the level of preference of an application, use a family connection beyond having a sibling currently attending the school, or prioritise the children of employees at the school. The guidance also recommends that schools do not use academic criteria. However, the Minister cannot prohibit secondary schools from using criteria which select on ability, and most grammar schools continue to do so (see below).

Admissions to Grammar Schools Most grammar schools have chosen to continue to select children on the basis of ability, using the results of two separate academic tests: one run by a local company, AQE (used mainly by grammar schools who admit mainly Protestant children) and one set by GL Assessment (used mainly by Catholic grammar schools). A small number of schools allow children to apply with the results of either test. Parents enrol their children for these tests in the participating grammar schools. Pupils with special educational needs who are not ‘statemented’ (see page 498) must take the tests if their parents want them to be considered for a grammar school place. If a pupil with a statement of special educational needs (SEN) wishes to attend a grammar school, this will be decided as part of the statementing process and he or she is not required to take the selection tests. Grammar schools continue to use, as their first criterion, the results in the selection tests, giving priority depending on whether the children have attained a

492

Laura Lundy, Gráinne McKeever and Viviane Treacy

grade A, B1, B2 or C. However, they also consider any special circumstances that may have affected performance in the test. Any medical or non-medical factors affecting performance must be sent to the school and the two systems (AQE and GL) have different requirements and forms for these that can be obtained from the participating schools. Boards of governors are under a duty to verify the child’s performance in the unregulated test and any information demonstrating that the child has special circumstances. The departmental guidance on the use of the unregulated tests reminds schools that they must not discriminate against children with a disability in framing special circumstances arrangements.

Other Post-primary Admissions Criteria Other admissions criteria apply only when non-grammar schools are oversubscribed and when a grammar school must distinguish between pupils with the same grade. Grammar schools may give priority to former ‘prep’ department pupils, or to pupils with family or traditional connections with the school. Some admissions criteria typically used include priority for pupils whose siblings currently or previously attended the school, pupils coming from traditional contributory or parish primary schools, pupils living in a defined catchment area, or children of current or past members of staff. In one case, parents were unsuccessful in arguing that giving priority to pupils from certain rural primary schools in a secondary school’s admissions criteria, thereby prejudicing the admission chances of pupils living in a much nearer urban estate, was unlawful (JR 56’s Application (No 2), (2011)). Information about schools and the transfer process is published by the ELBs. Transfer report forms are completed in a parents’ interview with the pupil’s primary school principal. ELBs advise parents to nominate at least one nongrammar school amongst their preferred schools and they can include schools outside the pupil’s current ELB area. The transfer form also provides space for the inclusion of additional details, such as official confirmation of any medical or special circumstances (ie a doctor’s or psychologist’s report), any reasons for the preferred school, and details of siblings already attending. For many families, the availability of transport assistance will be important in deciding on a post-primary school. This may be provided by ELBs if the school is more than the statutory walking distance (three miles) from a pupil’s normal residence, provided a place has been sought and admission refused at all suitable schools in the same category which are within three miles. ‘Suitable’ means, in the case of secondary schools, controlled, maintained, integrated or Irish-medium schools, and, in the case of grammar schools, denominational or non-denominational schools. Transport assistance is not available in the case of a preference for a single-sex school. The order in which schools are listed on the transfer report form is the main factor taken into account when transport applications are being assessed. (See also page 509.)

Education Rights

493

Admissions Appeal Tribunals Parents who are dissatisfied with the refusal of a school to admit their child may appeal to an Appeal Tribunal (art 15 of the Education (NI) Order 1997), but only on the grounds that the school did not apply, or had incorrectly applied, its admissions criteria and the child would otherwise have been admitted to the school. Appeals must be made in writing to the Appeal Tribunal. Parents must be given an opportunity to appear and to make written and oral representations on their own behalf. No new information may be considered in an appeal. If the Appeal Tribunal finds in favour of the appeal, it must direct the board of governors of the school in question to admit the child, even if this means that the school will exceed its admissions and enrolment number.

Exceptional Circumstances Body Where parents feel that their child has an exceptional need for admission to a particular post-primary school and they have been unable to secure that place through the normal admissions process, they may apply to the Exceptional Circumstances Body, which was set up under the School Admissions (Exceptional Circumstances) Regulations (NI) 2010. In order for the parents to be successful in their challenge, the Body must be satisfied that the circumstances claimed are exceptional, that they are personal to the child, and that they require the admission of the child to the specified school, and only that school. Regulation 5 of the 2010 Regulations lists two examples of circumstances that may be considered as exceptional by the Body, namely circumstances where, in the opinion of a registered medical practitioner, the child has been subjected to sexual abuse, and circumstances where a child is looked after by an authority (as defined in art 25 of the Children (NI) Order 1995). Circumstances which the Body may not consider to be exceptional are circumstances related wholly or mainly to the kind of education provided at a school, circumstances related to a child’s academic ability, and circumstances related wholly or mainly to the availability of transport to that school (art 6). If the Body finds in favour of the appeal, it will direct the specified school to admit the child.

Judicial Review Parents who are dissatisfied with the decision of an Appeal Tribunal, or who believe that a school’s admissions criteria are unlawful, may seek a judicial review in the High Court (see Chapter 2). A child in such a case is generally eligible for legal aid. Even if a judicial review finds in favour of a complainant, the High Court can reverse a decision of the Board of Governors or appeal tribunal only if a proper application of the criteria would actually have resulted in admission.

494

Laura Lundy, Gráinne McKeever and Viviane Treacy

The Curriculum The Northern Ireland Curriculum was revised in 2006 with a view to becoming more flexible and less prescriptive. Article 4 of the 2006 Order requires boards of governors: To ensure that the school offers a balanced and broadly based curriculum which: (a) promotes the spiritual, emotional, moral, cultural, intellectual and physical development of pupils at the school and thereby of society; and (b) prepares such pupils for the opportunities, responsibilities and experiences of life by equipping them with appropriate knowledge, understanding and skills.

Governors must produce a written curriculum policy statement. They are required to consider the range of the curriculum and the balance between, and coherence of, its different components (art 12 of the 2006 Order). The school’s principal must ensure that the curriculum delivered in the school is compatible with the curriculum policy. The revised curriculum sets out ‘Areas of Learning’ and ‘Contributory Elements’ at each of the four key stages. Article 7 of the 2006 Order requires ‘each pupil at the school to be taught the minimum content within that area of learning’ and that teaching ‘is consistent with the minimum content’. The minimum content is highlighted in bold font in the official descriptions of the areas of learning. The curriculum provided must be compatible with statements of minimum content. A new ‘entitlement framework’ which came into force in September 2013 requires that pupils have access to no fewer than 18 courses at Key Stage 4 (that is, Year 11 and 12, when children usually take GCSEs) and 21 courses post-16. This will rise to 24 and 27 courses respectively in September 2015. At least one-third of these courses must be ‘general’ and one-third must be ‘applied’. The intention is to ensure that all pupils have access to both academic and more vocational subjects. Schools may enter into arrangements with other schools and FE colleges in order to meet the requirements of the entitlement framework (art 21). The Department of Education’s Circular 2007/20 gives guidance on the responsibilities in relation to attendance, discipline, charging and special educational needs for pupils who are attending another school but who are not registered pupils at that school.

Assessment and Examinations The Council for the Curriculum, Examinations and Assessment (CCEA) draws up the curriculum and organises assessment and examinations on behalf of the Department of Education. School ‘league tables’ are no longer published in Northern Ireland, but statutory assessment information is used for school

Education Rights

495

target-setting and for reporting attainment levels to parents. The latter is set out in the section on pupil records and reporting (see below). Schools must enter pupils for approved public examinations unless there are educational reasons for not doing so, but they are permitted to recover ‘wasted examination fees’ from a parent if any pupil ‘fails without good reason to meet any examination requirement for that syllabus’ (art 84 of the Education (NI) Order 1998). The CCEA is the regulatory body for GCSE, GCE and other external examinations in Northern Ireland and is responsible for scrutinising procedures to ensure that standards are maintained. Many schools also enrol pupils for GCSEs and GCEs administered by other examination bodies based in England and Wales, such as AQA and Edexcel. Pupils have a right to challenge examination decisions. If the assessment has been made by an external body, requests for a paper or other assessment to be re-marked must be made by the principal of their school or college to the appropriate examination board. If the pupil and principal are not satisfied, a further complaint can be made to the examination board and they can see the pupil’s examination scripts. If necessary, the school principal may appeal to the examination body’s appeal committee. A final appeal may be made to the Examination Appeals Board, but only in relation to the examination board’s procedures, not the grade awarded. In the case of internal assessments, the Joint Council on Qualifications’ guidance advises that schools should have a process for enabling an internal review of the process surrounding the assessment.

Pupil Records and Reporting School principals are required to provide parents with information about their child’s progress on or before 30 June each year. This information must include: the pupil’s annual assessment in the cross-curricular skills of ‘Communication’ and ‘Using Mathematics’; the child’s achievement in the areas of learning of the revised curriculum and in using ICT and other skills; and information on the focus for the child’s development and on their interests and strengths. At the end of each Key Stages 1, 2 and 3 (Primary 4, 7 and Year 3 at secondary school respectively), the principal must provide details of the level of progression the child has achieved in any cross-curricular skill in which he or she has been assessed and a statement of the level of progression expected at the end of the Key Stage. The school must also provide a statement of the percentage of pupils in the final year of the Key Stage in the school attaining each level in that skill, attaining the expected level or above in that key skill, or working towards the level but exempted from the assessment arrangements. At the end of Key Stage 4, parents must be provided with an assessment of the pupil’s progress in relation to ‘Communication’ and ‘Using Mathematics’, as well as brief particulars of the pupil’s achievement in any other area of learning or activity that forms part

496

Laura Lundy, Gráinne McKeever and Viviane Treacy

of the curriculum. At the end of the sixth form, parents must be provided with any qualification, award or certificate gained by the pupil, including any credit awarded towards a qualification where the pupil did not obtain the full qualification (Education (Pupil Reporting) Regulations (NI) 2009). When a pupil transfers to another school, the Board of Governors of the original school is required to make arrangements for the transfer of an individual’s pupil records to that school within 15 days. Boards of governors must also make arrangements for certain education records to be disclosed on request and a copy to be supplied to the parent or any school in which the pupil is accepted for admission. Certain information does not have to be disclosed, including: statements of special educational needs, reports to magistrates’ courts, certain personal information (name, address or occupation of a pupil’s parent), and the pupil’s religious denomination. The results of an individual pupil’s assessment do not have to be disclosed to anyone other than the pupil, his or her parents, the Board of Governors of a school to which he or she has been admitted, and the CCEA. Any decision to refuse disclosure or transfer of information can be appealed to the Board of Governors.

Religious Education All schools, including special schools, must provide for both religious education and collective worship. This must be so arranged that: ‘(a) the school shall be open to pupils of all religious denominations for instruction other than religious education, and (b) no pupil shall be excluded directly or indirectly from the other advantages which the school affords’ (art 21(4) of the 1986 Order). Ministers of religion of any denomination must be given reasonable access to pupils in order to give religious education, provided parents do not object. Parents can insist that the child be excused from any religious education classes and collective worship (art 21(5)). Voluntary grammar, Catholic maintained and integrated schools may determine their own provision for collective worship and denominational instruction. Religious education must be in accordance with the ‘core syllabus’ specified by the Department of Education. This syllabus is prepared in consultation with the four main churches in Northern Ireland (art 11 of the Education (NI) Order 2006). In addition, in controlled schools (with the exception of controlled integrated schools) religious education must be non-denominational, that is, it must be ‘based upon the Holy Scriptures according to some authoritative version thereof but excluding instruction as to any tenet distinctive of any particular religious denomination’, and collective worship must ‘not be distinctive of any particular religious denomination’ (art 21(2) of the 1986 Order). Parents who have a concern with arrangements for religious education or collective worship can raise it with the school principal or write to the Board of Governors. If the problem is not resolved they can complain to the Curriculum Complaints Tribunal (see below).

Education Rights

497

Variations or Exemptions from the Curriculum Boards of governors of grant-aided schools have a statutory duty to deliver the statutory curriculum to all pupils and may vary this only where the Department of Education permits the curriculum to be modified or suspended to allow development work or experiments (art 14 of the 2006 Order), where regulations require it (art 15), where a pupil has a statement of special education needs which specifies exemption from or modification of the curriculum (art 16), or where a temporary exception is required for an individual pupil (art 17). A temporary exemption from the curriculum may arise where a pupil’s health is affecting his or her ability to learn or where a pupil needs to be assessed by the ELB with a view to making a statement of educational needs. In such cases the principal may direct that for an ‘operative period’ (not more than six months) the curriculum, assessment procedures and educational themes may be modified or not applied. Where parents are concerned about the situation, they may appeal to the Board of Governors of the school. If they are still not satisfied they can appeal to the Curriculum Complaints Tribunal or, if their child has a statement of special educational needs, to the Special Educational Needs Tribunal.

Curriculum Complaints In theory, parents who are concerned about the way an ELB or the Board of Governors of a school is discharging its duties in relation to the curriculum or assessment, religious education, access to information or any related matter, can apply in writing to the Curriculum Complaints Tribunal (art 33 of the Education Reform (NI) Order 1989). In practice, information about the Curriculum Complaints Tribunal is not published and it is not clear that the statutory complaints procedure is used to any great extent. The statutory complaints procedure does, however, remain one possible means by which parents might be able to ensure that statutory commitments, including more recent equality provisions, are followed.

Children with Special Educational Needs A child has ‘special educational needs’ (SEN) if he or she has ‘a learning difficulty which calls for special educational provision to be made for him or her’. A ‘learning difficulty’ means a child ‘has significantly greater difficulty in learning than the majority of children of his or her age, or has a disability which prevents or hinders him or her from making use of educational facilities of a kind generally

498

Laura Lundy, Gráinne McKeever and Viviane Treacy

provided at ordinary schools for children of his or her age’. A child is not to be taken as having a learning difficulty solely because his or her first language is not the same as the language of instruction in school (art 3 of the Education (NI) Order 1996).

The SEN System The needs of children with learning difficulties are met through the SEN system, which is governed by the Education (NI) Order 1996, the Special Educational Needs and Disability (NI) Order 2005 and the Code of Practice on the Identification and Assessment of Special Educational Needs, issued in 1998 under article 4 of the 1996 Order. Article 4 requires that all ELBs and boards of governors must have regard to the provisions of the Code. The Code (as supplemented in 2005) describes five stages of provision for SEN: — Stage 1: The teacher identifies a concern about possible SEN and notifies the school’s Special Educational Needs Coordinator (SENCo), the principal and the child’s parents. — Stage 2: The school’s SENCo takes the lead in assessing the child’s needs and in planning, monitoring and reviewing the special educational provision required to meet the need. In consultation with the teacher(s), he or she draws up an individual education plan (IEP) with targets and dates for action and review. — Stage 3: Teachers and the SENCo review the education plan and may request additional support from ELB specialists and resources. — Stage 4: The child is referred to the ELB for a statutory assessment. — Stage 5: The ELB decides whether a statement of SEN is needed.

General Powers and Duties of ELBs Under the Education (NI) Order 1996 an ELB must ‘determine and keep under review their policy in relation to special educational provision’ and ‘the arrangements made by it for special educational provision’ (art 6). An ELB has a general duty to use its powers with a view to identifying the children in its area who require or may require statutory assessment (art 13). When an ELB holds the opinion that a child meets or probably meets the criteria for statutory assessment (see below), it must conduct such an assessment of that child (art 15). When, in the light of a statutory assessment, an ELB believes that it is necessary for it to determine the special educational provision the child needs, it must make and maintain a statement of special educational needs for that child (art 16). The ELB’s duty to identify and assess applies to all children up to the limit of possible school age. This is deemed to occur on the day after the end of the school

Education Rights

499

term in which the child attains the age of nineteen years (art 3). Where a health and social services authority knows of a child below compulsory school age who has, or probably has, special educational needs it must inform the child’s parents and notify the ELB about its concerns (art 14). In the case of a child under two, the ELB must first obtain the parents’ consent before proceeding with a statutory assessment (art 21). There is a general duty to ensure that children with SEN are educated in mainstream schools. In the case of children with Statements, this duty applies unless it is incompatible with the wishes of the parents or with the provision of efficient education to other children (art 7). An ELB may make special educational provision otherwise than in a grantaided school and other than in Northern Ireland if the needs of the child require it and the arrangements are compatible with ‘the efficient use of resources’ (art 10). It may also pay fees and any reasonable maintenance and travelling expenses for the child and any person accompanying him or her (art 11).

The duties of Boards of Governors Boards of governors of grant-aided schools are required: — to use their best endeavours to ensure that pupils with SEN receive the special educational provision which their learning difficulty calls for; — to ensure that the child’s special needs are made known to all those likely to teach him or her; — to ensure that ‘so far as is reasonably practicable’ the child engages in the activities of the school alongside peers who do not have SEN; — to inform parents of children without Statements that special provision is being made in school because it is considered that the child has SEN (art 8A); — to ensure that the school has an SEN policy; and — to report on steps taken to comply with the SEN policy in their annual report (art 9).

Provision for Non-statemented Children Most children with special educational needs do not have a statement of SEN. They rely for support on the provision made by schools in the non-statutory ‘school based stages’ which are described in the Code of Practice. All school-based provision made at Stages 1 and 2 is made directly from the school’s own budget in discharge of the legal duties noted above. School budgets include an element for special educational needs, but at the time of writing this element is not ringfenced and may be applied by the school to meet other demands. At Stage 3 the school may supplement its provision to the child by calling in external specialist

500

Laura Lundy, Gráinne McKeever and Viviane Treacy

services to help meet the child’s needs. Such services exist, for example, to support children with an autistic spectrum disorder, with a specific literacy difficulty such as dyslexia, or with behavioural difficulties, and these additional services are funded by the ELBs. The specialist services do not generally work directly with children, but provide advice and support to teachers and other school staff to enable them to devise and deliver appropriate teaching strategies for children with these types of special needs. The SENCo and class teacher should draw up an IEP for all children with special educational needs. It is good practice for parents to contribute to the development of the IEP. Parents also have a right to apply to the ELB for a statutory assessment of their child’s needs which may lead to the issue of a Statement in addition to the IEP. The issue of a Statement transfers the legal responsibility for making provision for the child’s needs from the school to the ELB. Statutory assessment is Stage 4 of the SEN system described in the Code. The ELBs do not normally conduct statutory assessments for children who have not previously had the benefit of all available school-based provision, with external support if necessary. If parents are considering seeking a statutory assessment they should consult pages 28–30 of the Code of Practice which sets out the criteria which ELBs should use when deciding whether or not to assess. They can also consult the Special Educational Needs Advice Centre (SENAC) or the Children’s Law Centre for further advice (see Useful Contacts at the end of this chapter). If parents feel that their child has been placed at an inappropriate stage, or is moving too slowly through the school-based stages, or that the provision made by school is insufficient to meet their child’s needs, they can also seek advice from the above organisations or from the Dispute Avoidance and Resolution Service (see page 503).

Statutory Assessment and Statements A ‘statutory assessment’ is the process used by ELBs to decide whether or not to issue a statement of SEN. An ELB must conduct a statutory assessment if it holds the opinion that a child in its area falls or ‘probably falls’ within the descriptions set out in article 15(2). These are that the child has SEN and that it is necessary for the ELB to determine the special educational provision that the child needs. ELBs should consider statutory assessment when ‘there is convincing evidence that, despite relevant and purposeful action by the school, with the help of external specialists, the child’s learning difficulties remain or have not been remedied sufficiently’ (para 3.21 of the Code of Practice). If an ELB decides to conduct an assessment it must inform the parents of that decision and the reasons for it. When conducting a statutory assessment the ELB must seek advice from the child’s parent, school, doctor(s) and educational psychologist and may seek other advice from, for example, social workers who have been involved with the child. Parents may also submit independent reports from any professional of their choice if they wish to do so. Any such reports are considered

Education Rights

501

as part of the parental representations. Parents may be present at any examination connected with the assessment of their child. The whole process should take no more than 18 weeks. In practice, however, it often takes longer than this. At the end of a statutory assessment the ELB must issue a Statement if it believes that it is necessary for it to do so (art 16). It must notify the parents of its decision to issue or refuse a Statement, setting out the reasons for the decision. If parents are dissatisfied, they have a legal right to appeal to the Special Educational Needs and Disability Tribunal (SENDIST) (see below). They may also refer the issue to the Dispute Avoidance and Resolutions Service, without prejudice to their appeal rights (see page 503).

Provision for Statemented Children A ‘Statement’ is a legally binding document which should set out all the special educational needs the ELB has identified during the statutory assessment and all the provision it intends to make to meet those needs. It includes six parts, the most important of which set out: — the special educational needs identified (Part 2); — the special educational provision that will be provided to meet the identified needs (Part 3); — the name of the school the child will attend (Part 4); — any non-educational needs (eg physiotherapy) identified during assessment (Part 5); and — any non-educational provision to be made to meet the non-educational needs; transport provision is normally inserted here (Part 6). Parents must be allowed to comment on a preliminary draft of the Statement which does not have the name of a school inserted in Part 4. They must also be given copies of all the formal advice and evidence used to reach a decision. They have 15 days to consider and respond to the first draft and within that time they may request a meeting with the board officer to discuss the draft. Any changes agreed at the meeting should then be presented in an amended draft Statement which parents have a further 15 days to consider. Parents also receive a form in which they can express their preference for the school they want to have named in the final Statement. The name of that school should be inserted in Part 4 of the final Statement unless the ELB believes that the school is unsuitable to the child’s age, ability, aptitude or SEN, or that the attendance of the child at that school would be incompatible with the provision of efficient education to his or her classmates or with the efficient use of resources (Sch 2 of the 1996 Order). Once a final Statement has been made, it is the responsibility of the ELB to arrange that the special educational provision indicated in the Statement is made for the child. Currently Statements must be reviewed at least every 12 months. Parents must be invited to attend every annual review meeting and they ‘may

502

Laura Lundy, Gráinne McKeever and Viviane Treacy

of course bring a friend, relative or adviser to the meeting’ (para 6.12 Code of Practice). Parents are advised to attend all annual reviews but especially those where the child would normally be due to move school (from nursery to primary, or from primary to secondary), and the first review after age 14 when a ‘transition plan’ for the child’s move to further or higher education and adult life will be agreed. If the annual review meeting decides that the Statement no longer meets the child’s needs it can recommend changes to the Statement. The meeting may also decide that the child no longer needs any Statement at all and that the existing Statement should be ceased. The ELB will consider these recommendations and may decide to change or cease the Statement. It must then issue a proposed amended Statement setting out the changes it wishes to make or a notice advising the parent that the Statement will be ceased. If the parents do not agree with the ELB’s proposals they have a right of appeal to the SENDIST (see below).

Prohibition of Discrimination on the Grounds of Disability ELBs and schools must not discriminate against disabled pupils, that is, treat them less favourably, without legal justification. The obligation on schools applies to admission arrangements, the education and associated services provided by the school and suspensions and expulsions. A disabled pupil for these purposes is defined in the Disability Discrimination Act 1995: someone who has ‘a physical or mental impairment which has a substantial and longterm adverse effect on his ability to carry out normal day-to-day activities’. (See Chapter 16 for more details.) Schools must make reasonable adjustments to ensure that disabled pupils are not put at a substantial disadvantage compared to other pupils, although schools will not be liable if they did not know and could not reasonably have been expected to know of a pupil’s disability. ELBs are under obligations to plan to increase accessibility of the curriculum and school premises and to improve the delivery of information normally provided in writing. Schools must publish plans in governors’ reports. Parents can complain about discrimination to the SENDIST (see below). The key exception is in relation to expulsions (although suspensions can be appealed to SENDIST). Grievances about disability discrimination can also be referred to the Equality Commission’s Disability Discrimination Conciliation Service.

The Special Educational Needs and Disability Discrimination Tribunal (SENDIST) A parent of a child with an SEN Statement who does not agree with what is proposed for his or her child has a right of appeal to SENDIST. An appeal can be against any aspect of the Statement, except aspects referring to non-educational support. The Statement must be maintained until the appeal is determined. It is also possible to appeal if:

Education Rights

503

— an ELB turns down a request to change a school named in the Statement (so long as it is a grant-aided school and the child’s Statement has been maintained by the ELB for at least a year); — the child has a Statement but an ELB turns down a request to re-assess the child (so long as it has not made a new assessment for at least six months); — an ELB decides not to maintain a child’s Statement any longer or, after a reassessment, decides not to amend the Statement; — an ELB refuses to conduct an assessment; — the parent disagrees with the content of the Statement, including the choice of school; or — an ELB has decided to cease to maintain the Statement. If the problem is one which cannot be appealed to SENDIST, parents should talk to the school or contact SENAC or DARS (see below). If it is not possible to reach agreement, it may then be possible to complain to the Department of Education. Appeals to the Tribunal must be made in writing no later than two months after the ELB makes its decision. The Tribunal may determine an appeal without a hearing if the parents and the ELB agree in writing, otherwise there will be an oral hearing. Parents have a right to represent themselves or to use a representative at the hearing. Both the parents and the ELB will be able to give written and oral evidence and to call witnesses. Parents may be entitled to some legal aid to prepare for the hearing, but this will not cover representation at the hearing. Psychologists employed by the ELB involved in the case are contractually barred from giving expert advice against their own authority. However, expert advice can be sought from psychologists and other experts employed by other ELBs. Advice and support can also be given by SENAC. Article 12 of the UN Convention on the Rights of the Child 1989 asserts the right of the child who is capable of forming his or her own views ‘to express those views on any matter affecting him or her’ in accordance with his or her age and maturity. The Tribunal chair should therefore allow parents to bring their child to the hearing in order to give his or her views, but under current legislation the child may not be permitted to stay for the whole hearing. The child’s participation should be encouraged where possible, if necessary through a video-recorded contribution. The decision of a Tribunal can be appealed to the High Court on a point of law (rather than an issue of fact) by either the parent or the ELB. The appeal must be lodged within 21 days of the notice of the Tribunal’s decision. Access to legal aid is assessed on the basis of the parents’ income.

Informal Resolution of Disputes The Dispute Avoidance and Resolution Service (DARS) is a cross-ELB service which is intended to provide an informal forum to resolve disagreements between ELBs or boards of governors and parents about the way in which they carry out

504

Laura Lundy, Gráinne McKeever and Viviane Treacy

their responsibilities towards children with SEN. The DARS is an independent, confidential, voluntary and informal service designed to provide an opportunity for identifying points of disagreement and finding ways forward that all parties are willing to accept. There is a DARS contact in each ELB area, who is independent of its Special Education section. Involvement with the DARS does not affect the right of appeal to SENDIST. The DARS cannot be used to resolve other disputes with a parent, school or ELB.

Complaints to the Department and the Ombudsman If the ELB fails to implement an SEN Tribunal decision, parents can complain to the Department of Education under article 101 of the 1989 Order. If parents exhaust their options with either the ELB or Department and still feel that they have a complaint, they can contact the Ombudsman (tel: 0800 343424).

Pupil Welfare The Education and Libraries (NI) Order 2003 extends the duty of schools to promote the welfare of pupils and to take specific measures to protect children from abuse. Article 17 states that: it shall be the duty of the Board of Governors of a grant-aided school to safeguard and promote the welfare of registered pupils at the school at all times when such pupils are on the premises of the school or in the lawful control or charge of a member of staff at the school.

It also requires schools to consult pupils about disciplinary and good behaviour policies. Article 18 of the 2003 Order requires the Board of Governors of a school to determine the measures to be taken at the school with a view to protecting pupils from abuse. Department of Education Guidance, Pastoral Care in Schools (1999), provides schools with guidance on pupil welfare, including protection from abuse and bullying.

Anti-bullying Policies Schools are under a legal obligation to have an anti-bullying policy and to consult pupils when developing it. Bullying contravenes a pupil’s right to protection from violence and inhuman or degrading treatment (guaranteed by Art 3 of the European Convention on Human Rights (ECHR)) and may also undermine his or her right to education (Art 2 of Protocol 1 to the Convention). Schools have a duty to tackle bullying. An anti-bullying policy must be part of a school’s disciplinary policy but may also be part of a preventive ‘whole-school’

Education Rights

505

strategy. A policy should include a named person to whom any pupil or parent who has a concern about bullying may report the matter. Where bullying has not been resolved satisfactorily parents should speak to the school principal. In very serious and persistent cases it may be appropriate for parents to contact the police.

Discipline Policy The Board of Governors of a grant-aided school must have a specific policy designed to promote good pupil behaviour. There must be a written statement of general principles regarding disciplinary matters to which the school principal will have regard in determining school rules and behaviour policies. Pupils must be consulted in preparing the policy and a copy of the policy should be available to parents of all pupils. Some schools require a home-school ‘contract’ signed by parents and pupils (although this has no legal standing). The school’s discipline policy should include procedures for identifying and dealing with misbehaviour. Serious cases should require a more rigorous process for investigating and identifying the alleged perpetrator. Schools must respect the right of a pupil to rebut any allegations and the process of investigation must meet certain standards in conducting searches, recording evidence and dealing with witnesses. Disciplinary sanctions must have been made generally known to parents in the written disciplinary policy (art 5 of the 1998 Order). Punishments which humiliate or ostracise pupils may be considered inhuman or degrading under the ECHR and punishments which discriminate on any ground (eg gender, race or religion) which cannot be objectively justified may also contravene the Sex Discrimination (NI) Order 1976, the Race Relations (NI) Order 1997 or the Fair Employment and Treatment (NI) Order 1998.

Physical Punishment Article 36 of the Education and Libraries (NI) Order 2003 makes it unlawful for a member of school staff (ie a teacher or any person who works at the school) to administer corporal punishment to a child for whom education is provided in any grant-aided school or whose education, otherwise than at school, is provided for by an ELB under article 86 of the 1986 Order. Corporal punishment is defined as ‘doing anything for the purpose of punishing a child (whether or not there are other reasons for doing it) which, apart from any justification, would constitute battery’. Any teacher who uses physical force against a pupil may be open to criminal charges. A member of staff may, however, use such force as is reasonable in the circumstances for the purposes of preventing the pupil from doing or continuing to do any of the following: committing an offence; causing personal injury to,

506

Laura Lundy, Gráinne McKeever and Viviane Treacy

or damage to the property of any person; or engaging in any behaviour which is prejudicial to the maintenance of good order and discipline at the school.

Detention For a period of detention in school to be lawful, steps must have been taken to bring it to the attention of the parents of all pupils. The detention must be imposed by the principal or another teacher specifically or generally authorised to do so and the pupil’s parents must have been given at least 24 hours’ notice in writing that the detention was due to take place. The detention must also be reasonable in all the circumstances. In deciding whether it is reasonable, the principal must take into account a number of factors. The first is whether the detention constitutes a proportionate punishment in the circumstances. Secondly, regard must be had to any special circumstances which are known to the person imposing the detention, including the pupil’s age, any special educational needs, any religious requirements affecting him or her and, where arrangements have to be made for travel, whether suitable alternative arrangements can reasonably be made by his or her parent.

Confiscation A teacher may take property from a child if the teacher considers it to be inappropriate or dangerous for the child to have it in his or her possession while at school or if such property is forbidden under the school’s rules. However, the property should be returned to the pupil or his or her parents. If the property confiscated is, in the teacher’s opinion, inappropriate for the pupil to have, the teacher should give the child’s parent an opportunity to collect the confiscated item. Many schools do this as a matter of policy when a child uses a mobile phone during the school day. If the property is illegal, for example a weapon or drugs, the police should be informed. If a teacher keeps a pupil’s property for his or her (or the school’s) use, he or she may be guilty of the criminal offence of theft. If he or she destroys the property without lawful authority, he or she may be guilty of the criminal offence of criminal damage and could be sued for damages for trespass to property.

Exclusion from School Temporary or permanent exclusion from school is not in itself a breach of the right not to be denied education in Article 2 of Protocol 1 to the ECHR, but it may be if the result is to deny a pupil access to education elsewhere. Excluded pupils also have the right to due process and a fair hearing. Each ELB, the governors of voluntary and integrated schools and the CCMS must all have a scheme in place in relation to the suspension or expulsion of pupils.

Education Rights

507

Temporary Exclusion— Suspension Any temporary exclusion from school is a suspension and must comply with certain legal requirements. The initial suspension should not exceed five school days and no pupil should be excluded for more than 45 days in any school year. The length of suspension should accord with the behaviour and must take individual circumstances into account. Parents must be notified immediately and told of the period of the suspension—pupils cannot just be sent home. Schools are under a legal obligation to provide education (usually in the form of work from their teacher) to suspended pupils regardless of the length of the suspension or reason for the sanction (art 34 of the 2006 Order). There is no statutory right of appeal against a decision to suspend, but if parents are not satisfied they should ask for the decision to be reviewed. In the case of a controlled school, they should write to the chief education officer of the ELB; in the case of a Catholic maintained school to the director of the CCMS; and in the case of a voluntary or grant-maintained integrated school to the chairperson of the Board of Governors. If parents believe that the ELB or Board of Governors has acted unreasonably, they can complain to the Department of Education.

Permanent Exclusion—Expulsion A pupil may be expelled from school only after serving a period of suspension and only after consultation about the matter has taken place between the principal, the parents and the chief executive of the ELB, the Board of Governors or the director of the CCMS (or someone authorised by the director). Following a principal’s recommendation to expel, a final decision is taken, in the case of a controlled school, by the ELB on the advice of a sub-committee, and in the case of Catholic maintained, voluntary and grant-maintained schools, by the Board of Governors. Before a decision to expel is taken a meeting must be held by the principal so that both the educational authorities and family can consider the future education of the pupil. Parents should consider carefully any suggestion that they withdraw their child and transfer him or her to another school to avoid the stigma of expulsion on the pupil’s record. If parents feel this would unjustly deny them the opportunity of challenging the grounds for expulsion they can complain to the Department of Education under article 101 of the 1989 Order.

Appealing Against Expulsion Parents can appeal to an Appeal Tribunal if they feel the expulsion procedure was not followed properly or was unreasonable (art 49 of the Education (NI) Order 1993). Written notice of the right to appeal must be given to the parents immediately by the principal. ELBs must make arrangements ‘without delay’ for an appeal

508

Laura Lundy, Gráinne McKeever and Viviane Treacy

against a decision to expel a pupil from a grant-aided school in its area. Parents can complain if this does not happen. The Appeal Tribunal consists of three or five members and may not include staff of the school involved. A parent or pupil (if 18 or over) may make written representations to, and appear before, the Appeal Tribunal and may be accompanied by a friend or legal representative, but there is no general recognition of a pupil’s right to be heard. The Appeal Tribunal will also hear representations from a member of the Board of Governors or ELB. The tribunal must have regard to all the circumstances of the case and in particular to any representations made by the parent, pupil, expelling authority or ELB, whether the expulsion procedure was properly followed, and the interests of other pupils and teachers in the school (reg 2 of the Education (Amendment) Regulations (NI) 1998). If parents or the pupil are still dissatisfied, they may be able to seek a judicial review (see Chapter 2).

Education Otherwise Than At School (EOTAS) If a pupil is expelled, an ELB has the power to direct another specified grant-aided school within a reasonable distance from the child’s home to admit the child, provided it is not one from which he or she has already been suspended or expelled. A school that has a vacant place may refuse admission to a pupil on the grounds of ‘prejudice to the efficient use of resources’, but an ELB can appeal against this to the Department of Education. ELBs must produce a statement setting out the arrangements made or proposed for assisting schools to deal with general or individual behavioural problems and for assisting children with behavioural difficulties to find places at suitable schools (art 6 of the Education (NI) Order 1998). In some cases home tuition may be provided. However, this is often very limited and may not be appropriate for some pupils. Some ELBs provide pupil referral units for older post-primary age pupils whose behaviour and attendance is too disruptive for schools to manage. Department of Education guidance states that all such placements should ensure that the young person receives a curriculum of basic skills and opportunities for suitable work experience, with courses which lead to accredited qualifications.

Financial Considerations Grant-aided schools may not charge fees or ask parents to pay for or supply books, instruments, equipment or transport required in the statutory curriculum or on an approved public examination syllabus. Only a small number of schools are allowed to charge per capita fees since almost all schools now receive 100 per cent

Education Rights

509

funding for both capital and recurrent expenditure. All schools may, however, charge for optional extra activities that are additional to the statutory curriculum (eg music, sports or additional non-compulsory academic subjects which take place wholly or mainly outside school), entry fees for non-required public examinations, and board and lodging for residential field trips. Parents on income support or jobseeker’s allowance should have costs remitted. Parents can be asked to contribute to school funds (‘voluntary contribution’) provided it is clear that contributions are not obligatory and that pupils will not be treated differently as a result of contributions being made by their parents.

Transport Assistance ELBs must make the arrangements considered necessary ‘for the provision of transport, or otherwise or as the Department may direct, for the purposes of facilitating the attendance of pupils at a grant-aided school’. They must draw up and publish schemes on the provision of home-to-school transport. Free transport is provided for pupils attending special schools and for those whose statement of special educational needs requires it and may also be provided where there is a short-term medical or health need. Assistance with transport may be provided for those who have sought and been refused a place at a ‘suitable’ school or further education college within statutory walking distance from their home, that is, more than two miles from the nearest ‘suitable’ school for a primary pupil, or more than three miles from the nearest ‘suitable’ post-primary school. To be eligible for transport assistance pupils must first have applied to all schools in the same category that are within walking distance before a preference is expressed for a school which is outside this distance. Pupils are able to use existing transport services provided by ELBs but additional bus services do not have to be provided. Transport assistance may include passes for public transport or a contribution to petrol expenses for parents who can drive children to school. ELBs may in some circumstances be under an obligation to provide transport assistance for pupils who live within the statutory walking distance if it is considered ‘necessary’, for instance, because of the duration or safety of the journey (Circular 1996/41). Parents who are concerned about the decision of an ELB regarding transport should take it up with the ELB in the first instance. If they are still dissatisfied they may complain to the Department of Education under article 101 of the Education (NI) Order 1989.

School Uniforms and PE Kit Grants ELBs may give assistance towards the cost of a school uniform and PE kit for special and post-primary school pupils if parents are in receipt of particular

510

Laura Lundy, Gráinne McKeever and Viviane Treacy

benefits, namely income support, jobseeker’s allowance, employment and support allowance, the guarantee element of state pension credit, child tax credit, or working tax credit. Children of asylum seekers who are supported by the Home Office National Asylum Support Service will also be eligible for a uniform and PE grant. A separate application on a form obtained from ELB offices has to be made each year.

Education Maintenance Allowance Educational maintenance allowance is a mandatory means-tested benefit to assist with the cost of remaining at school beyond the minimum compulsory school leaving age (l6 years). The amount is graduated according to the parents’ income. A separate application must be made for each child each year. Payment is subject to satisfactory school attendance. The allowance is still paid in Northern Ireland even though it has been abolished in England.

School Meals Midday meals are available in all grant-aided schools and free meals are provided to pupils whose parents are in receipt of income support, jobseeker’s allowance, employment and support allowance, the guarantee element of state pension credit, or child tax credit. Children of asylum seekers who are supported by the Home Office National Asylum Support Service will also be eligible for free school meals. An application form endorsed by the Social Security Agency must be completed and sent to the ELB headquarters as soon as entitlement arises. Free meals cannot be provided until official confirmation is received.

Complaints about Education Provision If parents or pupils have a problem or complaint about the education provided in their school it may be simply a question of finding out who to complain to and what remedies are available. It is usually best to try to get things sorted out with the member of staff concerned or to raise the issue with the child’s form tutor, pastoral year head or school principal. Some schools may have a specific complaints procedure which should be followed. If the principal does not solve the problem it can be taken up with the Board of Governors. Parents can approach governors about any school issue and have a right to be told governors’ names. A letter to the chairperson of the Board of Governors will put a complaint formally on record. It is important to keep copies of all correspondence. The Children’s Law Centre

Education Rights

511

(contact details at the end of the chapter) provides free legal advice to children on issues affecting them in education.

Appeal to a Complaints Tribunal If a complaint is not satisfactorily dealt with within the school by the Board of Governors, the next step will depend on the school sector involved and the type of complaint. As noted already in this chapter, ELBs are responsible for establishing independent tribunals to hear complaints from all school sectors in three main areas: admissions, expulsions and the curriculum. There is also a Northern Ireland-wide Special Educational Needs Tribunal which has different rules of operation and a legally qualified chair. ELB complaints tribunals are meant to give parents an opportunity to argue in a non-legal context that a school or ELB has not applied the rules or procedures properly. Parents may appear at the tribunal and present evidence and may be accompanied by a friend or be represented. Tribunals may generally only consider whether a school acted reasonably and legally and followed the correct procedures. Where there are special procedures for appeal or complaint these must be exhausted before taking a complaint further.

Complaint to the Department of Education If an ELB or board of governors fails to comply with any direction of an Appeal Tribunal, or the matter is not resolved by a tribunal, and for matters not specifically dealt with by one of the complaints tribunals above, parents may complain to the Department of Education under article 101 of the 1986 Order if they believe that the school or another educational body has behaved unreasonably or failed in their duties. A complaint can also be about ELBs, the CCMS or the CCEA. If the Department is satisfied that there has been an unreasonable exercise of a power or duty it must give directions to remedy the complaint. However, this procedure is very rarely used and it can take up to six months or more. Parents can ask their Member of the Legislative Assembly (MLA) to help with a complaint to the Department of Education.

Judicial Review Parents who are dissatisfied with the decision of an Appeal Tribunal, the Department of Education or the Board of Governors of a school, and who believe that such a body has acted illegally, unreasonably or unfairly in not following the proper procedure, may seek a judicial review in the High Court (see Chapter 2). However, it is essential that a judicial review is taken promptly

512

Laura Lundy, Gráinne McKeever and Viviane Treacy

(and certainly within three months) and it is necessary to be legally represented. Some drawbacks with pursuing an application for judicial review are that generally the court can reverse a decision only if it can be shown that the public body in question acted unlawfully, considered inappropriate (or did not consider appropriate) evidence or that no reasonable public body could have made the decision in question. Even if a High Court judge finds in favour of an applicant for judicial review, the judge may not necessarily reverse the public body’s decision or order any remedy, such as the admission of a child who has been refused a place at a particular school.

International Human Rights Obligations The UK is party to a number of international treaties that give individuals rights in relation to their education. The only one of these that can be used directly in local courts and tribunals is the ECHR. One of the Convention rights is the right not to be denied education. If litigants have exhausted their search for remedies in national courts and tribunals and are still dissatisfied, they can then complain to the European Court of Human Rights in Strasbourg. The Convention’s right to education is set out in Article 2 of Protocol 1 to the Convention, which states: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

In the case of the UK, a reservation has been entered in relation to this provision which says that ‘the principle affirmed in the second sentence of Article 2 is accepted … only so far as it is compatible with the provision of efficient education and training, and the avoidance of unreasonable public expenditure’. This phrase appears throughout national education law and operates to limit state provision to what is considered to be a reasonable use of resources. In the Belgian Linguistics Case (No 2) (1968) the European Court of Human Rights considered that the right to education covers three areas: the right of access to existing educational institutions, the right to official recognition of studies and the right to an effective education. However, the Court stressed that the Convention did not require contracting parties ‘to establish at their own expense, or to subsidise, education of any particular type or level’. Moreover, it emphasised that the right of access to education ‘by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals’. Thus, in the Belgian Linguistics Case (No 2) (1968) the Court found that Article 2 of Protocol 1 did not give parents a right to have their child educated in a minority language. In a similar vein, the European Commission on Human Rights considered that the Convention

Education Rights

513

does not give parents the right to have their child educated at a private school which catered specifically for dyslexic children (Simpson v UK, 1989) and in another case it ruled that wishing to have one’s child educated in an integrated school in Northern Ireland is not a ‘philosophical conviction’ requiring protection under Article 2 of Protocol 1 (X v UK, 1978). There are several other provisions in the Convention of relevance in schools. The first is Article 3, which states that no-one may be subjected to ‘torture or to inhuman or degrading treatment or punishment’. This has been considered in a number of cases involving discipline in schools. Three other ECHR rights of significance are respect for privacy and family life (Art 8), freedom of thought, conscience and religion (Art 9) and freedom of expression (Art 10). The UN Convention on the Rights of the Child provides a more extensive framework for children’s rights in education, although it is not directly enforceable in the courts of Northern Ireland. It asserts that the basic right to education belongs to the child and that it should be accessible to all on the basis of equality of opportunity (Art 28) and states that the education of a child must be directed to the development of his or her abilities to their fullest potential (Art 29). Children have the right to express their views on the matter affecting them, ‘the view of the child being given due weight in accordance with the age and maturity of the child’ (Art 12). Both the ECHR and the UNCRC require that there should be no discrimination in access to or the enjoyment of education on the grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. However, discrimination is permitted where it can be reasonably or objectively justified. The United Nations Convention on the Rights of Persons with Disabilities has additional obligations in relation to children in education.

Useful Contacts Belfast Education and Library Board 40 Academy Street Belfast BT1 2NQ tel: 028 9056 4000 www.belb.org.uk The Children’s Law Centre Philip House, 3rd floor 124–137 York Street Belfast BT15 1AB tel: 028 9024 5704 freephone: 0808 808 5678 www.childrenslawcentre.org

514

Laura Lundy, Gráinne McKeever and Viviane Treacy

Council for Curriculum, Examinations and Assessment Clarendon Dock 29 Clarendon Road Belfast BT1 3BG tel: 028 9026 1200 www.ccea.org.uk Department of Education Rathgael House 43 Balloo Road Bangor Co Down BT19 7PR tel: 028 9127 9279 www.deni.gov.uk Disability Action Portside Business Park 189 Airport Road West Belfast BT3 9ED tel: 028 9029 7880 textphone: 028 9029 7880 www.disabilityaction.org Equality Commission for Northern Ireland Equality House 7–9 Shaftesbury Square Belfast BT2 7DP enquiry line: 028 9089 0890 textphone: 028 9050 0589 www.equalityni.org North Eastern Education and Library Board County Hall 182 Galgorm Road Ballymena Co Antrim BT42 1HN tel: 028 2565 3333 www.neelb.org.uk NSPCC The Lanyon Building Unit 7, 1st floor Jennymount Business Park North Derby Street Belfast BT15 3HN tel: 028 9035 1135 freephone: 0800 800 500 www.nspcc.org.uk

Education Rights South Eastern Education and Library Board Grahamsbridge Road Dundonald Belfast BT16 2HS tel: 028 9056 6200 www.seelb.org.uk Southern Education and Library Board 3 Charlemont Place The Mall Armagh Co Armagh BT61 9AX tel: 028 3751 2200 www.selb.org.uk Special Educational Needs Advice Centre (SENAC) Graham House Knockbracken Healthcare Park Saintfield Road Belfast BT8 8BH tel: 028 9079 5779 (advice helpline) Special Educational Needs Tribunal Albany House 73–75 Great Victoria Street Belfast BT2 7AF tel: 028 9032 2894 Western Education and Library Board 1 Hospital Road Omagh Co Tyrone BT79 0AW tel: 028 8241 1411 www.welbni.org

515

23 Employment Rights MARK REID AND CAROLINE MAGUIRE*

There has been extensive legal intervention in employment relations in Northern Ireland for many years. For convenience, the resulting laws, whether made by Parliament or by judges, can be divided into two categories. This chapter covers both, although the main focus is on the first: — Individual employment law is concerned with the rights and obligations flowing from the terms of the contract between an employee and an employer. In recent years employees have been given the protection of a ‘floor’ of employment rights, which can be improved upon by negotiation with an employer. — Collective employment law is primarily concerned with the regulation of the bargaining relationships between trade unions and employers or employers’ associations. For an account of employment law with particular reference to discrimination based on gender, religion, political belief, ethnic origin, disability, age or sexual orientation see Chapters 13 to 18.

Employment Law and the Legal System The introduction of substantial employment rights for employees has resulted in the creation of specialised judicial bodies: — Industrial tribunals were established under the Industrial Tribunals (NI) Order 1996. They deal mainly with individual employment matters such as unfair dismissal, redundancy, unlawful deductions from wages, holiday rights and discrimination. They are intended to provide cheap, quick and informal methods of hearing complaints but in many cases, due to the * Much of the material in this chapter ultimately derives from that produced for the third edition of this handbook by Richard Steele.

518

Mark Reid and Caroline Maguire

complexity of the legislation, the reality is different. Legal aid is not available for tribunal hearings but it is possible to use the ‘green form’ scheme (see Chapter 2), whereby limited subsidised advice and assistance can be obtained from a solicitor in advance of a hearing. Appeals are available on a point of law to the Court of Appeal. There is no Employment Appeal Tribunal in Northern Ireland. — The Fair Employment Tribunal, created by the Fair Employment and Treatment (NI) Order 1998, hears complaints of discrimination on grounds of religious belief or political opinion (see Chapter 14) and is constituted in the same way as industrial tribunals. — The Industrial Court was established by the Industrial Relations (NI) Order 1992 and acts as an arbitration body. Its role was enhanced as a result of its being given the power to determine issues relating to the recognition of trade unions following implementation of the Employment Relations (NI) Order 1999. The relevant government department responsible for employment legislation and policy is the Department for Employment and Learning (DEL), but responsibility for certain employment functions has been devolved to various statutory bodies: — The Labour Relations Agency (LRA), established by the Industrial Relations (NI) Order 1992, has a duty to promote the improvement of industrial relations, in particular by attempting to settle trade disputes. It mainly provides advisory, conciliation, mediation and arbitration services. — The Health and Safety Executive Northern Ireland was established by the Health and Safety at Work (NI) Order 1978. It reviews health, safety and welfare in connection with work and the control of dangerous substances. Together with district councils, it has responsibility for the enforcement of safety laws. — The post of Certification Officer was established by the Industrial Relations (NI) Order 1992, which created duties in respect of trade unions and employers’ associations. — The Equality Commission for Northern Ireland can provide assistance to individuals who have been discriminated against in the workplace in certain circumstances (see Chapter 12).

Contracts of Employment The great majority of employment rights which can be adjudicated upon by industrial tribunals are limited to employees. An employee is defined in article 3 of the Employment Rights (NI) Order 1996 (the 1996 Order) as an ‘individual

Employment Rights

519

who has entered into or works under a contract of employment’. Case law has expanded the understanding of the definition of ‘employee’. Essentially there are three fundamental conditions which must be satisfied: — the individual must agree to provide work personally (a substitute cannot be nominated); — there must be ‘mutuality of obligation’ between the employer and employee: if there is no obligation on an individual to turn up to work, or if he or she is engaged on a ‘casual as required’ basis, he or she will not be an employee; and — the individual worker must be subject to the overall control of the employer. If these conditions are satisfied it is then necessary to look at other elements of the working relationship, for instance who provides the equipment to carry out the work. Just because a person is described as self-employed and pays tax and national insurance on a self-employed basis does not necessarily preclude that person from being an employee. While many of the rights specified in the 1996 Order are limited to an individual who is an employee, for instance the right to claim unfair dismissal or a redundancy payment, some other rights can be claimed by a ‘worker’ (eg the right not to have unauthorised deductions made from wages). Many of the rights provided as a result of EU Directives (such as the right to minimum annual leave) are also provided to workers. Whilst the definition of ‘worker’ includes an employee, it is also wider and covers almost all contracts to perform work other than that carried out on a self-employed basis. There are also other statutory definitions of employee. For example, in the transfer of undertakings legislation employee is defined in wider terms than under the 1996 Order and may include some workers. Accordingly, care should be taken to ensure that the precise meaning of the term is clear in each case. The basis of an employment relationship is the law of contract. A contract is formed when an employer makes a job offer to a potential employee and that offer is accepted. The terms of the contract define the rights and duties of both parties. These terms are normally a mixture of express, implied, statutory and incorporated terms. — Express terms, which may be written or oral, are those actually agreed by the employer and employee. — Implied terms may exist by the operation of custom and practice in an industry or be terms necessary to make the contract of employment work. — Statutory terms are those implied into a contract by an Act of Parliament, such as the Equal Pay Act (NI) 1970. — Incorporated terms are those agreed by collective bargaining between a trade union and an employer and incorporated into the contracts of employment of each employee covered by the collective agreement.

520

Mark Reid and Caroline Maguire

The courts have held that certain implied terms are basic to every contract of employment. The most important of these are: — that an employee will obey all lawful and reasonable orders, take reasonable care in his or her work, not wilfully disrupt the employer’s business, and be honest; and — that an employer will pay agreed wages, take reasonable care for the employee’s safety and health, not require an employee to do illegal acts and not act in a manner likely to destroy the relationship of trust or confidence.

Written Statements of Particulars of Employment Often there is no formal written contract, making it difficult to ascertain what terms have been agreed between the parties. For this reason Part III of the 1996 Order provides that an employee who is to be employed for more than one month must be provided with a written statement of employment particulars not later than two months after the beginning of employment. This statement is not automatically a contract of employment. It is, however, good evidence of what might be contained in the contract of employment. The following particulars must be given in a single document: — the names of the employer and employee; — the date when any period of continuous employment began (taking into account any employment with a previous employer which counts as continuous employment); — the scale or rate of pay or the method of calculating pay; — the intervals at which wages are to be paid (eg weekly or monthly); — the hours of work; — entitlement to holidays, including public holidays, holiday pay and entitlement to accrued holiday pay on the termination of employment; — the title of the job or a brief description of the work; and — the place of work. The employer must also provide the following information, although this can be given in instalments: — the length of notice which the employee has to give or receive to end the contract of employment; — if the employment is not intended to be permanent, the period for which it is expected to continue, or, if it is for a fixed term, the date when it is to end; — any collective agreements which directly affect the terms and conditions of employment; and — other details (if the employee is required to work outside the UK) in respect of pay, the currency in which he or she is to be paid and how long he or she has to work outside the UK.

Employment Rights

521

The employer also has to provide details of the terms and conditions relating to the following matters, although these can be referred to in a document which is reasonably accessible to the employee: — incapacity for work due to sickness or injury, including any provision for sick pay; and — pensions and pension schemes. The employer also has to provide a note in the statement of employment particulars either specifying disciplinary rules and procedures or referring to a document where these can be reasonably accessed. The employer must also specify to whom an employee can apply to appeal any decision to dismiss or disciplinary decision or for redress of any grievance. If any steps are necessary to make such application either these must be explained in the statement of employment particulars, or the statement must refer to a document where the steps can be reasonably accessed. The employer must also provide a note specifying a person from whom the employee can seek redress for any grievance relating to his or her employment and the manner in which such application should be made. If any steps are necessary to make such application these must be either explained in the statement of employment particulars or the statement must refer to a document where the steps can be reasonably accessed. Where there is a change in any of the particulars, the employer must give the employee a written statement containing particulars of the change at the earliest opportunity and in any event not later than one month after the change in question. If the particulars are not provided, the employee can complain to an industrial tribunal. The tribunal has power to declare what particulars should have been given. Compensation of between two and four weeks’ pay may also be awarded for failure to provide written particulars if the complaint has been made together with a successful complaint arising under a jurisdiction covered by the LRA’s Code of Practice on Disciplinary and Grievance Procedures (see below). The complaint can be brought by the employee at any time while still working for the employer or within three months of the employment ending.

Agency Workers Agency workers are usually supplied by a work agency to work temporarily for a third party (the hirer). The agency worker works under the supervision and direction of the hirer, but only has a contract with the work agency. Agency workers are often neither the employee of the temporary work agency which engages them nor the employee of the hirer. As a result, many agency workers are denied the benefits associated with employment status (such as the right to claim unfair dismissal).

522

Mark Reid and Caroline Maguire

However, the Agency Workers Regulations (NI) 2011 now entitle agency workers to some measure of equality with permanent employees of the hirer. After 12 weeks’ work with the hirer an agency worker is entitled to equal treatment in relation to basic working and employment conditions as if he or she had been directly employed by the hirer. These basic conditions are: — — — — — —

key elements of pay; duration of working time (eg hours per week); night work; duration of rest periods; number and duration of rest breaks; and annual leave entitlement.

Agency workers are also entitled to access collective facilities and to receive information on permanent job vacancies with the hirer from the first day of their assignment. In addition, pregnant agency workers who have completed the 12-week qualifying period are entitled to paid time off for ante-natal appointments and to the benefit of the health and safety protections available to pregnant employees (eg if there are health and safety risks associated with their work, the right to be moved to suitable alternative work or to be suspended on pay on maternity grounds). The 12-week qualifying period is not retrospective and the agency worker must be engaged in the same role with the same hirer during the 12-week qualifying period. There are anti-avoidance provisions designed to prevent a series of assignments being structured so as to prevent an agency worker from completing the 12-week qualifying period. There are also special provisions allowing the qualifying period to continue to accrue while the agency worker is unable to work for specified reasons (such as pregnancy). Breach of the rights under the Regulations entitles an agency worker to bring a claim to an industrial tribunal. In addition, if an agency worker feels that a right provided for under the Regulations has been breached he or she can make a request to the temporary work agency for a written statement containing information relating to the treatment in question. An agency worker can also make a claim to an industrial tribunal if the worker believes that he or she has suffered detriment as a result of asserting rights under the Regulations. One potential significant exemption under the Regulations relates to agency workers who have a permanent contract of employment with an agency. Provided that certain conditions are satisfied, such workers will not be entitled to equal treatment in relation to pay. One of the key conditions of such an arrangement is that the agency worker is entitled to be paid by the agency a minimum amount of remuneration in respect of any period where the agency worker is between assignments and during such breaks in assignment the agency is under an obligation to take reasonable steps to seek suitable alternative work for the agency worker. However, an agency can terminate the contract of employment with the agency worker once it has complied with its obligation to pay the agency worker and to seek alternative work for an aggregate of four weeks.

Employment Rights

523

For more information see the DEL publication, The Agency Worker Regulations NI Guidance (2011) (www.delni.gov.uk/agency-workers-regulations-ni-guidanceoct2011.pdf ).

Part-time Workers The Part-time Workers (Prevention of Less Favourable Treatment) Regulations (NI) 2000 make less favourable treatment of a part-time worker in comparison with a comparable full-time worker unlawful if there is no objective reason to justify it. A part-time worker has the right not to be treated less favourably as regards the terms of the contract or by being subjected to any other detriment by any act or deliberate failure to act of the employer. A worker who considers that the employer has treated him or her less favourably can request a written statement giving particulars of the reasons for the treatment. The employer must provide such a statement within 21 days. An adverse inference can be drawn by an industrial tribunal from a failure to provide a written statement or if the statement is evasive or equivocal. A complaint in respect of unfavourable treatment or failure to provide a written statement can be made to an industrial tribunal within three months of the treatment or failure. In some circumstances, a woman who has been less favourably treated on grounds of part-time status may also have a claim of indirect sex discrimination.

Fixed-term Employees The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (NI) 2002 make less favourable treatment of fixed-term employees compared with comparable permanent employees on the grounds of their fixed-term status unlawful, again unless there is an objective reason to justify such treatment. However, in contrast to the Regulations governing part-time workers, these Regulations only apply to the narrower category of ‘employees’ rather than all workers. A fixed-term employee has the right not to be treated less favourably as regards the terms of the contract or by being subjected to any other detriment by any act or deliberate failure to act on the part of the employer. Again, a fixedterm employee who feels less favourably treated than a comparable permanent employee may submit a request in writing to the employer for a written statement for the reasons for the treatment and the employer must provide such a statement within 21 days. Failure to provide a statement, or providing an evasive or equivocal reply, can lead the tribunal to draw an adverse inference if proceedings are subsequently issued. A complaint of less favourable treatment can be made to an industrial tribunal within three months of the treatment.

524

Mark Reid and Caroline Maguire

The Regulations also provide that, where a fixed-term employee who has been continuously employed on fixed-term contracts for four years or more is reengaged on a fixed-term contract, the new contract will be regarded as a permanent contract unless the renewal on a fixed-term basis can be objectively justified.

Itemised Pay Statements Under Part III of the 1996 Order employees must be given an itemised pay statement every time they are paid. The statement must specify the gross and net wages payable, the amounts of any fixed or variable deductions and, where parts of the net wage are paid in different ways, the amount and method of each part payment. If an employee does not receive an itemised pay statement or disputes the content of the statement, he or she can complain to an industrial tribunal. If unnotified deductions have been made, the tribunal can order the employer to repay the amounts for the 13 weeks prior to the claim.

The Minimum Wage The National Minimum Wage Act 1998 and the National Minimum Wage Regulations 1999 brought into force the National Minimum Wage (NMW). There are differing rates depending on the worker’s age and whether he or she is an apprentice. The main rates from 1 October 2014 are as follows: — workers aged 21 and over are entitled to £6.50 per hour; — workers aged 18 to 20 are entitled to £5.13 per hour; — workers aged 16 to 17, who are above school leaving age, are entitled to £3.79 per hour; and — apprentices aged under 19, or 19 or over and in the first year of an apprenticeship, are entitled to £2.73 per hour. Home workers and agency workers are entitled to the NMW. However, certain groups are excluded, for example, prisoners, voluntary workers, and workers of compulsory school age. An employer must keep records for a three-year period which are sufficient to establish that a worker is being paid at least the NMW. A worker who has reasonable grounds for believing that he or she is not being paid the NMW is entitled to have access to and a copy of records within 14 days of a written request. If the worker is refused access he or she can complain to an industrial tribunal within three months of the refusal. Workers who are not paid their entitlement to the NMW can make a claim for unlawful deductions from wages in the industrial tribunal or sue for breach of contract in the civil courts. Alternatively, a worker can complain to Her Majesty’s Revenue and Customs (HMRC), which has powers to issue an enforcement notice

Employment Rights

525

where there has been a failure to pay the NMW and to pursue claims in an industrial tribunal on behalf of a worker. It is a criminal offence to fail to pay the NMW or to falsify or fail to keep NMW records. A worker subjected to a detriment or an employee dismissed due to action taken with a view to securing the benefit of any rights under the NMW can complain to an industrial tribunal. A dismissal in such circumstances will be treated as automatically unfair and no qualifying period of service is required to bring a claim for unfair dismissal. The UK Pay and Work Rights helpline deals with enquiries and complaints in respect of payment of the NMW.

Deductions from Wages Part IV of the 1996 Order provides that an employer must not make any deduction from the wages of any worker, or receive payments from the worker, unless the deduction or payment is authorised by statute or by a relevant provision in the worker’s contract, or agreed in writing in advance by the worker. The legislation gives special protection to workers in retail employment. A worker may complain to an industrial tribunal about unlawful wage deductions, provided he or she does so within three months of the deduction being made.

Guarantee Payments Part V of the 1996 Order provides that employees who have been employed for one month or longer may be entitled to a guarantee payment from their employer if they are laid off or put on short-time working. However, an employee will lose the right to payment if he or she refuses an offer of suitable alternative employment, if there is no work because of a trade dispute involving the employer or an associated employer, or if the employee does not comply with the reasonable requirement of the employer to be available for work. The right to a guarantee payment is limited to a maximum of £24.20 a day as at February 2014 (this rate is usually increased annually) and will be paid for up to five days in any threemonth period. An employee who does not receive the appropriate payment can apply to an industrial tribunal within three months of the day for which he or she was not paid.

Hours of Work The Working Time Regulations (NI) 1998 (the WT Regulations) were introduced to implement EC Working Time Directive 2003/88/EC, which lays down minimum conditions relating to weekly working time, rest entitlements and annual

526

Mark Reid and Caroline Maguire

leave and makes special provisions for working hours and health assessments in relation to night workers. The WT Regulations also implement certain aspects of the EC Young Workers Directive 94/33/EC relating to adolescent workers (ie workers above the minimum school leaving age but under 18). The information in this section relates only to adult workers. The main entitlements and limits referred to in the WT Regulations provide the following for adult workers: — a limit on the average weekly working time of 48 hours for each seven days (the average being calculated over a reference period); — a limit on the average length of night work of eight hours in every 24-hour period (the average being calculated over a reference period); — a limit on actual length of night work to eight hours in every 24-hour period where work involves special hazards or heavy physical or mental strain; — a limit on assigning a worker to night work unless an opportunity of a free health assessment has been granted; — a free health assessment at regular intervals for a night worker; — a transfer to day work if possible, on the advice of a doctor; — adequate rest breaks where the organisation of work is such as to put the health and safety of a worker at risk, in particular if the work is monotonous or the work rate is predetermined; — a daily rest period of 11 consecutive hours in each 24-hour period; — an uninterrupted weekly rest period of not less than 24 hours in each sevenday period; — an entitlement to an (unpaid) rest break of 20 minutes where the working day is more than six hours; and — a right to 5.6 weeks paid annual leave (inclusive of public or bank holidays). Enforcement of the above (except the last four rights) is the responsibility of the local council or the Health and Safety Executive. Broadly speaking, local councils are responsible for offices, catering services, hotels and sports and retail premises. The Health and Safety Executive is the enforcing agency for building and construction sites, colleges, schools, hospitals, quarries, fairgrounds and broadcasting studios (for details see the Health and Safety Executive (Enforcing Authority) Regulations (NI) 1999). A failure to comply with any requirements for which a local council or the Health and Safety Executive are responsible is a criminal offence, punishable by a fine. In relation to the last four rights listed above, a worker may present a complaint to an industrial tribunal where the employer has refused to permit the worker to exercise the rights. This must be done within three months of the breach. A worker also has the right not to be subjected to a detriment and dismissal of an employee will be automatically unfair if it is for a reason connected with rights and entitlements under the WT Regulations. An employee does not require any length of service to present a claim.

Employment Rights

527

Exclusions and Modifications The WT Regulations did not originally apply to persons involved in: — — — —

air, rail, road, sea, inland waterways and lake transport; sea fishing; other work at sea; or the activities of doctors in training.

However, various Directives introduced to amend these exclusions have been implemented so that the WT Regulations or other similar sector-specific legislation may apply to these workers in relation to certain rights referred to above. It is possible for workers to sign a written agreement to opt out of the 48-hour weekly maximum. The agreement to opt out can be ended by the worker giving notice in writing. The length of the notice required cannot be a period less than seven days or more than three months. Moreover, workers whose working time is not measured or pre-determined or is determined by the workers themselves on account of the specific characteristics of their job are excluded from the limit on the average working week and from requirements as to daily and weekly rest periods, breaks and hours of work for night workers. Such workers may be: — management executives or other persons with autonomous decision-taking powers; — family workers; or — workers officiating at religious ceremonies in churches and religious communities. Workers employed as domestic servants in a private household are excluded from the provisions relating to the 48-hour week, length of night work, health assessments, transfer to day work and breaks for monotonous work. A collective agreement or a work-force agreement may modify or exclude the provisions on daily and weekly rest periods, breaks and hours of work for night workers. In such cases, if a worker is required to work during what would otherwise be a rest period, the employer is under a duty wherever possible to allow the worker to take an equivalent period of compensatory rest. In exceptional cases where this is not possible, the employer is under a duty only to afford the worker such protection as may be appropriate in order to safeguard the worker’s health and safety.

Sunday Working The Shops (Sunday Trading etc) (NI) Order 1997 provides for the rights of shop workers in relation to Sunday working. The legislation applies to two different types of workers: ‘protected shop workers’ and ‘opted-out shop workers’.

528

Mark Reid and Caroline Maguire

A protected shop worker is an individual who was employed as a shop worker before 4 December 1997 who was not required under contract to work on a Sunday. Such a person cannot be required to work on a Sunday unless he or she has given the employer a signed opting-in notice expressly stating that the worker has no objection to Sunday working. An opted-out shop worker is an individual who has at any stage provided his or her employer with an opted-out notice. An opted-out notice is a notice signed and dated by the shop worker stating that he or she objects to Sunday working. It takes affect three months after the notice is given to the employer. A shop worker who is subjected to a detriment or dismissed for asserting rights in relation to Sunday working can complain to an industrial tribunal within three months of the detriment or dismissal. The Betting and Gaming (NI) Order 2004 provides similar rights to on-course betting workers.

Whistle-blowing The Public Interest Disclosure (NI) Order 1998 inserts provisions into the 1996 Order which seek to protect workers who disclose information relating to wrongdoing. Workers have a right not to suffer detriment in employment and employees have a right not to be unfairly dismissed for making protected disclosures. Such a dismissal will be automatically unfair and not subject to a qualifying period of continuous employment.

A Qualifying Disclosure Only qualifying disclosures are protected. These are disclosures of information which, in the reasonable belief of the worker making the disclosure, tend to show one or more of the following: — a criminal offence has been committed or is likely to be committed; — a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject; — a miscarriage of justice has occurred, is occurring or is likely to occur; — the health or safety of any individual has been, is being or is likely to be endangered; — the environment has been, is being or is likely to be damaged; or — information tending to show any matter falling within any one of the above is being or is likely to be deliberately concealed. To be a ‘protected’ disclosure, the qualifying disclosure must be made to the worker’s employer, to a government Minister (if the employer is a body appointed by statute) during the course of obtaining legal advice, or to any other ‘prescribed’

Employment Rights

529

person: see the Public Interest Disclosure (Prescribed Persons) Order (NI) 1999, as amended.

Right to be Accompanied at Disciplinary and Grievance Hearings Articles 12–17 of the Employment Relations (NI) Order 1999 make provision for a worker to be accompanied by a fellow worker or a trade union official at a disciplinary or a grievance hearing. A disciplinary hearing is a hearing which could result in: — the administration of a formal warning to a worker by his employer; — the taking of some other action in respect of a worker by his employer; or — the confirmation of a warning issued or some other action taken. A grievance hearing is a hearing which concerns the performance of a duty by an employer in relation to a worker. Where the chosen companion is not available, the employer must postpone the hearing to an alternative time proposed by the worker (provided the alternative time is reasonable and falls within five working days). A worker is protected against being subjected to a detriment and dismissal is automatically unfair if the reason for detriment or dismissal is because the worker sought to exercise the rights of accompaniment or postponement or to accompany a fellow worker as a companion. No qualifying period of continuous service is required to claim unfair dismissal in these circumstances. This appears to be the only circumstance where a ‘worker’, as opposed to an ‘employee’, is entitled to claim unfair dismissal. The LRA’s Code of Practice on Disciplinary and Grievance Procedures (2011) applies to this right of accompaniment. The broader provisions of the code of practice apply only to employees.

Workplace Pensions From October 2012 the Pensions (No 2) Act (NI) 2008 has required employers to automatically enrol certain qualifying ‘jobholders’ as active members of an ‘automatic enrolment’ workplace pension scheme and pay minimum contributions to it. To be eligible to be auto-enrolled on such a pension scheme the qualifying jobholder must: — earn more than the minimum earnings threshold (£109 per week at February 2014);

530

Mark Reid and Caroline Maguire

— be at least 22 years of age but under the state pension age; and — work in Northern Ireland. The requirement for auto-enrolment applies over a six-year period as follows: — — — —

October 2012 to February 2014: employers of 250 or more workers; April 2014 to April 2015: employers of 50 to 249 workers; June 2015 to April 2017: employers of 49 or fewer workers; and May 2017 to February 2018: any employer established after April 2012.

For some types of schemes an employer can delay enrolment until the end of September 2017. An employer can also request postponement of automatic enrolment for three months but must inform their workers in writing of any such postponement. There are also provisions whereby workers who are not eligible jobholders can request to be enrolled in a workplace pension. The government has established the National Employment Savings Trust (NEST) which aims to provide a low cost scheme to small firms and employers of low to medium earners. Enrolment of workers onto the NEST scheme will satisfy an employer’s obligations under the Pensions (No 2) Act (NI) 2008. The Pensions Regulator is responsible for regulating workplace pension schemes and its website provides detailed guidance on the new requirements: www.thepensionsregulator. co.uk.

Maternity Rights Maternity Leave An employee, regardless of how long she has worked for her employer, is entitled to 26 weeks’ ordinary maternity leave and 26 weeks’ additional maternity leave. Additional maternity leave will start immediately after ordinary maternity leave. A pregnant employee will be required to notify her employer of her intention to take maternity leave by the fifteenth week before her expected week of confinement (EWC), unless this is not reasonably practicable. She will need to tell her employer that she is pregnant, the week her baby is expected to be born, and when she wants her maternity leave to start. She can change her mind about when she wants to start her leave provided she tells her employer at least 28 days in advance (unless this is not reasonably practicable). On receipt of a woman’s notification an employer must respond to the employee within 28 days. The employer has to write to the employee setting out the date on which the employer expects her to return to work if she takes her full entitlement to maternity leave. A woman who intends to return to work at the end of her full maternity leave does not have to give any further notification to her employer. To return to work before the end of her additional maternity leave

Employment Rights

531

period she has to give her employer eight weeks’ notice of the date she wants to return to work. An employer and employee are entitled to make ‘reasonable contact from time to time’ while the employee is on maternity leave. This may be to discuss an employee’s return to work or to keep the employee informed of important developments at the workplace and any relevant promotion opportunities or job vacancies that arise during the maternity leave. Where both the employer and the employee agree, employees can carry out up to 10 days of work during maternity leave (called ‘keeping in touch days’), without the employee losing any leave or pay entitlements. The earliest date at which maternity leave can start is the beginning of the eleventh week before the baby is due (or the date the baby is born if earlier than this). If a woman is absent from work for a pregnancy-related illness during the four weeks before the start of her EWC her maternity leave will start automatically. In addition, an employee entitled to maternity leave must not work or be permitted to work by her employer during the period of two weeks after childbirth.

Maternity Pay Not all women are entitled to be paid by an employer during maternity leave. If she meets the qualifying conditions, a woman is entitled to Statutory Maternity Pay (SMP) or Maternity Allowance (MA) for 39 weeks. SMP is paid by her employer. MA is paid by the Incapacity Benefits branch of the Social Security Agency. A woman continuously employed for 26 weeks by the same employer by the ‘qualifying week’ (the fifteenth week before the EWC) who has average weekly earnings of at least the lower earnings limit (£111 from April 2014) may be eligible for SMP to be paid by her employer. A woman who qualifies for SMP will be entitled to SMP at 90 per cent of average weekly earnings for the first six weeks of the pay period from her employer. Thereafter, she will be entitled to a standard rate of SMP from her employer (which is £138.18 per week for babies due on or after April 2014 but rises annually) or 90 per cent of the woman’s average weekly earnings if this is less than the standard rate. Where a woman qualifies for SMP and her employment is terminated for any reason after her qualifying week she retains her entitlement to SMP. A woman who does not qualify for SMP but who has earned on average £30 per week in at least 13 of the 66 weeks leading up to the EWC and has been employed for 26 of those weeks may qualify for MA. If a woman qualifies for MA she will receive £138.18 per week (from April 2014) or 90 per cent of her average weekly earnings if this is less than £138.18. During maternity leave an employee continues to be employed and to benefit from the normal terms and conditions of employment other than the terms and conditions relating to remuneration. The position in relation to pension rights is

532

Mark Reid and Caroline Maguire

complicated and expert advice should be sought in each case. A woman returning from ordinary maternity leave is entitled to return to the same job, under the same terms and conditions as if she had not been absent. An employee entitled to additional maternity leave has a right to return to the same job as she was employed in before her absence or, where not reasonably practicable, to a job with at least the same terms and conditions as her old position, and of an equivalent or higher status. Dismissal of a woman returning to work after a pregnancy on grounds of redundancy is automatically unfair if the employer has failed to offer her a suitable alternative vacancy. It is also unlawful to subject a woman to a detriment and dismissal is automatically unfair if it is for a reason connected to her pregnancy or the fact that she has given birth or sought to take maternity leave.

Risk Assessment The Management of Health and Safety at Work Regulations (NI) 2000 place specific obligations on employers to carry out a risk assessment of work undertaken by women of child-bearing age or a new or expectant mother where she may be exposed to any process, working condition or physical, chemical or biological agent which could give rise to risks to the health or safety of the woman or the baby. Where an employer is notified that an employee is pregnant, has given birth within the previous six months or is breast-feeding, the employer must again undertake a review of the current risk assessments for those tasks undertaken by the women in order to identify potential risk. If necessary, preventive or protective measures must be put in place and the employee informed of the contents of the assessment and the measures taken. If it is not possible to avoid the risk, the employer is required to alter the woman’s working conditions or, if this is not practicable, to take action to find suitable alternative employment or to place the woman on paid leave for as long as is necessary to protect her safety or health or that of her baby.

Paternity Rights The Employment (NI) Order 2002 enables a person who has or expects to have responsibility for a child’s upbringing and who is the biological father of the child or the mother’s husband or partner (this can be a partner of the same sex) to take paternity leave. To qualify, such a person will have to be continuously employed by his or her employer for 26 weeks leading into the fifteenth week before the baby is due. The paternity leave must be taken within 56 days of the actual date of birth of the child. Only one period of paternity leave is available regardless of whether more than one child is born as a result of the same pregnancy. The paternity leave can only last for a maximum of two consecutive weeks.

Employment Rights

533

To avail himself of paternity leave an employee is required to inform his or her employer of his or her intention to take paternity leave by the fifteenth week before the baby is expected, unless this is not reasonably practicable. At the same time the employee will need to tell the employer, the week the baby is due, whether the employee wishes to take one or two weeks’ leave and when he or she wants the leave to start. An employee will be able to change his or her mind about the date on which he or she wants the leave to start, provided that the employee tells the employer at least 28 days in advance, unless this is not reasonably practicable. An employee who has average weekly earnings above the lower earnings limit for national insurance purposes (£111 per week from April 2014) may qualify for statutory paternity pay which is £138.18 per week or 90 per cent of average weekly earnings if this is less than £138.18 (ie the same rate as the standard rate of SMP). The Additional Paternity Leave Regulations (NI) 2010 entitles a parent to take up to six months leave from work to care for a child if the child’s mother returns to work without exercising her full right to maternity leave. To qualify for such ‘additional paternity leave’ the employee will have to be continuously employed by his or her employer for 26 weeks leading into the fifteenth week before the baby is due. The leave must end before the child’s first birthday and must be taken in one consecutive period, but not otherwise. The employee may be entitled to be paid if leave is taken during the mother’s maternity pay period. To avail himself of additional paternity leave an employee is required to inform his or her employer of the intention to take paternity leave at least eight weeks in advance of the proposed start of the additional leave period. At the same time the employee will need to tell the employer the week which was the baby’s expected week of birth, the baby’s date of birth and the dates the employee wishes to start and end additional paternity leave. A notice must also be provided by the employee confirming that leave is being taken to care for the baby and that the mother is returning to work.

Adoption Rights Adoption leave is available to an employee where an approved adoption agency notifies the employee of a match with a child. To qualify, the employee will have to have continuously worked for the employer for 26 weeks leading into the week in which he or she is notified of being matched with a child for an adoption. Adoption leave and pay will not be available in circumstances where a child is not newly matched for adoption, for example, when a step-parent is adopting a partner’s child. An employee will be entitled to up to 26 weeks’ ordinary adoption leave followed by up to 26 weeks’ additional adoption leave. Only one period of leave will be available regardless of whether more than one child is placed for adoption as part of the same arrangement. An individual can choose to start leave from the

534

Mark Reid and Caroline Maguire

date of the child’s placement or from a fixed date which can be up to 14 days before the expected date of placement. Adoption leave and pay will be available to only one member of a couple where a couple adopt jointly. The couple may choose which partner takes adoption leave. The other member of a couple who adopts may be entitled to paternity leave and pay (including additional paternity leave). Statutory adoption pay is payable for up to 39 weeks at the same rate as the standard rate for SMP (£138.18 from April 2014 per week or 90 per cent of average weekly earnings if this is less than £138.18). It will be paid only to an employee who has average weekly earnings above the lower earnings limit for national insurance contributions (£111 from April 2014). An employee will be required to inform the employer of the intention to take adoption leave within seven days of being notified by an adoption agency that he or she has been matched with a child for adoption, unless this is not reasonably practicable. The employee will also have to tell the employer when the child is expected to be placed with the employee and when he or she wants adoption leave to start. An employee will be able to change his or her mind about the date on which he or she wants leave to start, provided the employer is told at least 28 days in advance, unless this is not reasonably practicable. The employee will also have to tell the employer the date he or she expects any payments of statutory adoption pay to start at least 28 days in advance, unless again this is not reasonably practicable. An employer will have to respond to an employee’s notification of leave within 28 days and must write to the employee setting out the date on which the employee is expected to return to work if the full entitlement to adoption leave is taken. An employee who intends to return to work at the end of full adoption leave will not have to give any further notification to his or her employer. An employee who wants to return to work before the end of adoption leave must give eight weeks’ notice of the date he or she intends to return.

Right to Sick Pay Statutory Sick Pay (SSP) is payable by an employer to an employee for up to 28 weeks at a rate of £87.55 per week as of April 2014. Employees must earn at least the lower earnings limit for national insurance contribution liability (£111 from April 2014) and be ill for a period of four or more consecutive days. If the employee is sick for less than four consecutive days no SSP is payable. After three days SSP is only payable for qualifying days. To claim SSP the employee must notify the employer of his or her illness. Whilst an employer can set a time limit for notification, the employer cannot insist on notification being given personally or more than once in every seven days. Unless otherwise agreed, that notification should be given in writing. If the employer has not set any time limit for notification, the default time limit is that the employee should inform the employer by the seventh calendar day following the first qualifying day.

Employment Rights

535

For the first seven days of absence self-certification is sufficient. After the first seven calendar days of sickness the employer may require the employee to supply medical evidence in the form of a doctor’s statement. If notification is not given on time, the employer can still pay SSP if the employer accepts there was good cause for late notification. If the employer withholds SSP the employee can ask the employer for a written statement which explains why SSP is not being paid for the days in question. The employee can then ask HMRC for a decision on whether SSP is payable. This must be done within six months of the earliest day for which SSP is in dispute. SSP will not be payable if the employee: — is no longer sick; — has average weekly earnings less than the lower earnings limit (£111 per week as of April 2014); — has had 28 weeks SSP from the employer (or from a former employer where the last day in which SSP was paid by the former employer was within eight weeks of the current period of incapacity); — has become pregnant and is absent due to sickness during a maternity disqualification period (that is the 39-week period during which SMP or MA is payable); if not entitled to SMP or MA the period is 18 weeks starting either when the baby was born or, if absent due to pregnancy-related illness in the four week period before the baby was born, the beginning of the week such illness started; — is within eight weeks of a maternity disqualification period before or during which a period of incapacity started; — has done no work for the employer under the contract of employment; — is affected by a trade dispute at work and has a direct interest in the outcome; — is in legal custody on the first day of incapacity for work; — has reached the end of the contract of employment (unless it can be shown that the employer ended the contract to avoid paying SSP); or — has started or returned to work after receiving employment support allowance, incapacity benefit or severe disablement allowance within a specified period. The Fixed Term (Prevention of Less Favourable Treatment) Regulations (NI) 2002 have removed the bar on employees’ entitlement to statutory sick pay where the contract was for a fixed period of three months or less.

Flexible Working Parents of children aged under 16 or of children in receipt of disability living allowance aged under 18 have the right to apply to work flexibly. The right to request flexible working also now applies to employees who care for adults in need

536

Mark Reid and Caroline Maguire

of care who are partners, relatives or who live at the same address as the employee. To qualify, an employee must have worked with the employer continuously for 26 weeks at the date the application is made and have or expect to have responsibility for a child’s upbringing or for the adult in need of care and be making the application to enable them to care for the child or adult in need of care. Agency workers are specifically excluded from the right to apply for flexible working, save where an agency worker is returning from a period of parental leave (see below). The initial onus will be on the employee to make an application in writing to the employer. Only one application can be made per year. Within 28 days from the date of application the employer should arrange to meet with the employee to explore the desired work pattern in depth and to consider alternatives. The employer will then be expected to write within 14 days of the date of the meeting either agreeing to a new work pattern and a start date or to provide clear business grounds as to why the application cannot be accepted. An employee who is dissatisfied with the decision will then have the right to appeal in writing within 14 days. A further meeting should be held within 14 days to consider the appeal. The appeal decision should be given to the employee in writing within a further 14 days of the meeting. It should be noted that there is no automatic right to be allowed to work flexibly. An employee can go to an industrial tribunal only in specific circumstances such as the failure to follow the procedural requirements or where the employer’s decision to refuse the request is made on the basis of incorrect facts. An unjustified refusal of flexible working may also give rise to a claim of indirect sex discrimination.

Time Off for Dependants Article 85A of the 1996 Order provides that an employee can take a reasonable amount of (unpaid) time off during working hours if this is necessary: — to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted; — to make arrangements for the provision of care for a dependant who is ill or injured; — in consequence of the death of a dependant; — because of the unexpected disruption or termination of arrangements for the care of a dependant; or — to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for that child. An employee must tell the employer the reason for absence as soon as is reasonably practicable (and if possible, tell the employer before the absence how long the absence is expected to last). In this context ‘dependant’ means a child, a parent or a person who lives in the same household as the employee, otherwise than by reason of being an employee,

Employment Rights

537

tenant, lodger or boarder. For the purposes of the first two points above, dependant also includes anyone who reasonably relies on the employee either for assistance on an occasion when the person falls ill, is injured or assaulted, or to make arrangements for the provision of care in the event of illness or injury. For the purposes of the fourth point, dependant includes any person who reasonably relies on the employee to make arrangements for the provision of care.

Parental Leave Part III of the Maternity and Parental Leave etc Regulations (NI) 1999 entitles an employee who has been continuously employed by an employer for at least a year and who has or expects to have responsibility for a child to be absent from work on (unpaid) parental leave. An employee is entitled to 18 weeks’ leave in respect of any individual child. Default provisions set out in the legislation will govern the provision of parental leave unless there is provision in the employee’s contract which operates by reference to or incorporates a collective or workforce agreement or which gives entitlement to be absent from work to care for a child. Under the default provisions, no more than four weeks leave can be taken in respect of one child in any leave period. Parental leave may normally be taken only up to the child’s fifth birthday or, if the child is entitled to disability living allowance, up to the child’s eighteenth birthday. Leave may be taken only in blocks of a week, unless it is taken in respect of a child who is entitled to disability living allowance. Where leave is to begin on the date a child is born the employee is expected to give notice at least 13 weeks before the expected week of the child’s birth. The notice must specify the expected week of the child’s birth and the duration of the period of leave. In other cases the employee must give 21 days’ notice to the employer before leave is to commence, specifying the dates leave is to begin and end. The employer may postpone leave (other than leave to be taken when the child is born and the correct notice has been given) only if the employer considers that the operation of the business would be unduly disrupted if the employee took leave during the period requested. To validly postpone leave, the employer must give the employee notice not more than seven days after receiving the employee’s notice and the employer’s notice must specify a date which is within six months and has been determined by the employer after consultation with the employee.

Time off for Public Duties An employee is entitled to unpaid time off to perform duties as a lay magistrate or as a member of a district council, statutory tribunal, relevant prison visiting authority, specified health body (eg a health and social services trust) or relevant

538

Mark Reid and Caroline Maguire

education body (eg an education and library board) or a policing and community safety partnership.

Trade Union Activities An employee who is a member of a trade union is entitled to reasonable unpaid time off during work hours in order to take part in trade union activities.

Jury Service An employee is entitled to unpaid time off to perform duties if called to serve on a jury. An employee is also entitled to protection from detriment or dismissal due to undertaking such duties.

Paid Time Off An employee has rights to paid time off during working hours: — to attend an antenatal appointment when pregnant; — to carry out certain duties, activities and training if he or she is an official or learning representative of an independent trade union; — to perform duties or undergo relevant training as a trustee of an occupational pension scheme; — to perform functions or undergo training in relation to being an employee representative for the purposes of collective redundancies or in respect of the transfer of undertakings legislation (see below); — to look for work, or arrange training, if employed for two years or more and under notice of redundancy; and — to undertake study or training leading to a relevant qualification (defined in the Employment Rights (Time Off for Study or Training) (NI) Order 1998) if aged 16 or 17 (or 18 if study or training began before the age of 18) and he or she has not attained a specified standard of educational achievement.

Health and Safety at Work Health and safety standards in employment are regulated by both judge-made law and by a wide range of legislation. Under the judge-made law, employers have a general duty to take reasonable care for the safety and health of their employees. As regards legislation, in addition to specific health and safety provisions giving

Employment Rights

539

protection in, for example, factories and offices, employees receive health and safety protection under the Health and Safety at Work (NI) Order 1978.

General Duties of Employers Concerning Health and Safety Article 4 of the 1978 Order specifies that it is the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. This means, amongst other things, and as far as is reasonably practicable: — providing plant and systems of work which are safe and without risks to health; — ensuring safety in connection with the use, handling, storage and transport of articles and substances; and — providing such information, instruction, training and supervision as is necessary to ensure the health and safety at work of the employees. An employer must prepare, and when appropriate revise, a written statement of general policy with respect to the health and safety at work of the employees and bring it and any revisions to the notice of the employees (unless there are fewer than six).

Risk Assessment and Prevention The Management of Health and Safety at Work Regulations (NI) 2000 require employers to carry out risk assessments to identify health and safety risks. If more than four people are employed the assessment must be recorded. A person within the employer’s business can carry out the risk assessment. Under the Reporting of Injuries, Diseases, and Dangerous Occurrences Regulations (NI) 1997 an employer is obliged to report either to the Health and Safety Executive or to a local council and to keep records of certain matters. This relates mainly to deaths or major injuries connected with work, an accident at work which results in an injury which lasts for more than three days, reportable work-related diseases and other dangerous occurrences. The Safety Representatives and Safety Committee Regulations (NI) 1979 require employers to recognise safety representatives appointed by recognised trade unions and to consult with them. The representatives can investigate potential hazards and dangerous occurrences at the work place, investigate complaints, and make representations to the employer. In circumstances where employees are not represented by union-appointed safety representatives, the Health and

540

Mark Reid and Caroline Maguire

Safety (Consultation with Employees) Regulations (NI) 1996 apply. Under these regulations, the employer must consult either with the employees directly or with employee representatives on health and safety matters.

Other Duties of Employers In addition to the general duties owed by an employer to the employees, the 1978 Order stipulates the duties of employers and the self-employed to non-employees, the duties of persons concerned with premises to persons other than their employees, and the duties of manufacturers as regards articles and substances for use at work. It is also the duty of every employee to take reasonable care for the health and safety of anyone who may be affected by the employee’s acts or omissions at work.

Employment Protection in Health and Safety Cases An employee has the right not to be subjected to a detriment and a dismissal will be automatically unfair if the reason for dismissal is due to the employee: — carrying out activities after being designated by the employer as someone who can help to reduce risks to health and safety at work; — performing functions as a representative of workers on health and safety matters; — bringing to the employer’s attention circumstances connected with work which he or she reasonably believed were potentially harmful to health and safety; — refusing to return to a dangerous part of the workplace while the danger persisted in circumstances which the employee reasonably believed to be serious and imminent and which could not reasonably be averted by the employee; or — taking appropriate steps to protect him- or herself or other persons in circumstances of danger which the employee reasonably believed to be serious and imminent.

Notice to Terminate Employment A contract of employment can specify how much notice is to be provided to terminate the contract, but it is always lawful for an employee to accept pay in lieu of notice. Whilst a contract can provide for longer periods of notice, it cannot provide for a shorter period than the minimum period specified in article 118

Employment Rights

541

of the 1996 Order. The minimum period (except in cases of dismissal for gross misconduct, where no notice need be given) is as follows: — — — —

less than one month of service: no minimum notice; more than one month but less than two years of service: one week’s notice; two years of service: two weeks’ notice; and more than two years of service: the same number of weeks’ notice (up to 12 weeks).

Wrongful Dismissal If an employer dismisses an employee and fails to provide notice in accordance with the contract or statutory notice provisions the employee may be able to claim damages for wrongful dismissal. Such breach of contract claims can be brought to an industrial tribunal provided the contract is connected with employment and the employment has ended. It must be brought within three months of termination of the contract. An employer may counterclaim against the employee within six weeks of receiving a copy of the employee’s claim. The value of the employer’s counterclaim may be substantially higher than the employee’s claim. The maximum award a tribunal can make in a breach of contract claim is £25,000. Claims can also be brought for breach of contract in the ordinary civil courts (ie a county court or the High Court) and the time limit then is six years from the date of the breach of contract. But an employee will not usually be permitted to pursue a claim in the ordinary courts after losing a case before an industrial tribunal.

Statement of Reasons for Dismissal Article 124 of the 1996 Order enables an employee to be provided with a written statement giving particulars of the reasons for dismissal. The employee is normally entitled to a written statement only if he or she has been employed for one year at the date of dismissal and has requested the statement. Where the statement is requested it must be provided within 14 days from the date of the request. An employee who is dismissed whilst pregnant or during maternity leave is automatically entitled to a written statement without having to request it and irrespective of the length of her employment. If the employer fails to provide a written statement or if the reasons are inadequate or untrue a tribunal can award up to two weeks’ pay and make a declaration as to what it finds the employer’s reasons were for dismissing the employee. The tribunal can consider such a complaint only if it is presented at the same time as a complaint of unfair dismissal.

542

Mark Reid and Caroline Maguire

Unfair Dismissal Article 126 of the 1996 Order provides that an employee has the right not be unfairly dismissed. If an industrial tribunal finds that an employee has been unfairly dismissed it can order reinstatement, re-engagement (to another suitable job) or compensation. To claim unfair dismissal in Northern Ireland an employee normally needs to have been continuously employed by the employer for one year. In Great Britain the qualifying period is two years. The onus is on the employee to show that a dismissal has occurred. It takes place when the employer terminates the contract of employment, when a fixedterm contract ends or when the employee is constructively dismissed. A constructive dismissal takes place where an employee terminates a contract of employment because of the employer’s conduct. It is not enough to show that the employer has acted unreasonably: the employee must show that the employer has acted in fundamental breach of the contract of employment. An example would be where the employer reduces pay without consent. The onus is on the employer to show the reason for dismissal. The employer must satisfy the tribunal that the employee was dismissed for one of five reasons specified in article 130 of the 1996 Order: — — — —

incapacity (ie inability to do the work); misconduct; redundancy; the employee could not continue to work in the position held without contravening a statutory provision; or — ‘some other substantial reason’ justifying dismissal. In the event that the employer is unable to show that the employee has been dismissed for one of these reasons, the dismissal will be unfair. If the employer is able to show that the employee has been dismissed for one of the above reasons, the industrial tribunal will then determine whether the dismissal is fair or unfair. Among the factors to be taken into account by the tribunal are the size and administrative resources of the employer’s undertaking. The tribunal will also assess whether the employer’s decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted.

Automatically Unfair Dismissals Dismissal of an employee for certain specified reasons is automatically unfair. In such circumstances the tribunal will not have to look into the reasonableness of the dismissal. Selection of an employee for redundancy on the same grounds may also make the dismissal automatically unfair. Likewise, for certain dismissals

Employment Rights

543

an employee will not require any length of qualifying employment. The types of dismissal in question in this paragraph are as follows: — dismissal for maternity-related reasons, including the fact that the employee took maternity leave, parental leave, time off under the dependants’ provisions, paternity leave or adoption leave; — dismissal for time off in relation to jury service; — dismissal for reasons related to health and safety; — dismissal for performing a role as a trustee of a pension scheme; — dismissal for performing a role as an employee representative; — dismissal of a shop worker or on-course betting worker in connection with Sunday working; — dismissal in relation to rights under the Working Time Regulations (NI) 1998; — dismissal for asserting rights under the National Minimum Wage Act 1998; — dismissal in respect of protected public interest disclosures (whistleblowing); — dismissal in relation to the right to be accompanied at disciplinary and grievance hearings; — dismissal for asserting rights as a part-time worker; — dismissal due to enforcing rights under the Tax Credits Act 2002; — dismissal for asserting rights as a fixed-term worker; — dismissal for attempting to exercise the right to flexible working; — dismissal for asserting statutory rights conferred under the 1996 Order or the rights in relation to statutory minimum notice, deductions from pay, union activities and time off under the Working Time Regulations 1998; and — dismissal for trade union membership or activities.

Statutory Disciplinary and Dismissal Procedures The Employment (NI) Order 2003 sets out minimum disciplinary and dismissal procedures which an employer must follow when dismissing or taking relevant disciplinary action against an employee. ‘Relevant disciplinary action’ is action short of dismissal which the employer asserts is based wholly or mainly on the employee’s conduct or capability. It does not include suspension on full pay or the issuing of warnings. The 2003 Order provides for two forms of procedure. The standard disciplinary procedure should normally be followed but the modified procedure will apply where an employee is dismissed for gross misconduct without notice and it was reasonable for the employer to dismiss before enquiring into the circumstances in which the conduct took place.

544

Mark Reid and Caroline Maguire

The standard procedure is initiated by the employer writing a letter to the employee setting out the conduct which led the employer to contemplate dismissing or taking disciplinary action. The employer must arrange a meeting before taking any action other than suspension and must provide a right of appeal, but the dismissal or disciplinary action can be taken before the appeal hearing. The modified procedure takes place after dismissal. The employer must send a letter setting out what misconduct led to dismissal and give the employee a right of appeal. There are limited circumstances in which the statutory procedures may be held not to apply or be deemed to have been fulfilled. A failure to follow the statutory dismissal and disciplinary procedures could have detrimental consequences as follows: — it could result in a finding of unfair dismissal if an employee has at least one year’s continuous service with the employer; or — compensation awarded by a tribunal will be increased or reduced by between 10 and 50 per cent depending on who failed to follow the procedures, unless there are exceptional circumstances that would make such an increase or reduction unjust or inequitable.

Code of Practice on Disciplinary and Grievance Procedures A failure by the employer or employee to follow the LRA’s Code of Practice on Disciplinary and Grievance Procedures (2011) will be taken into account by an industrial tribunal when considering relevant cases. As far as grievances are concerned, the code of practice replaces the statutory procedures which were repealed by the Employment Act (NI) 2011. The tribunal can, if it considers it just and equitable, increase or reduce any award of compensation by up to 50 per cent to reflect any unreasonable failure to follow the code by either the employer or employee. The jurisdictions to which this potential penalty applies are set out in Schedule 4A to the Industrial Relations (NI) Order 1992. In outline, the code sets out the way grievances should be dealt with as follows: — if it is not possible to resolve a grievance informally then it should be raised formally in writing; — a meeting should be arranged, all parties should take reasonable steps to attend, and the employee should be allowed to explain the basis of the grievance; — the employer’s decision and the reason for it should be communicated to the employee in writing, along with any proposed action, and the employee should be informed of the right of appeal; — the employee should advise the employer in writing of the grounds of any appeal and the employer should notify the employee of the time and place of the appeal meeting; and — the outcome of the appeal should be communicated in writing.

Employment Rights

545

All of the steps outlined above are to be taken ‘without unreasonable delay’. Examples of unreasonable conduct given in the code include failing to offer a grievance meeting and failing to appeal a decision. The code applies these grievance requirements to ‘employees’, so workers who are not employees are not subject to its rules.

Redundancy Redundancy is a potentially fair reason for dismissal but, if an employee believes that there is no genuine redundancy situation or that he or she has been unfairly selected for redundancy, he or she may make a claim for unfair dismissal providing the qualifying conditions for such a claim are met (see above). If the employee was selected for redundancy for an automatically unfair reason (eg pregnancy) he or she will have a claim for automatic unfair dismissal. The law takes two approaches to redundancy: — it requires employers to inform and consult representatives of employees before redundancies are implemented; and — it provides for compensation to be paid to employees who are made redundant (subject to the employee having two years’ continuous service).

Consultation on Redundancies Part XIII of the 1996 Order provides that, if an employer proposes to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer must consult all persons who are appropriate representatives of any of the employees who may be dismissed. Appropriate representatives of employees are employee representatives elected by them or representatives of independent trade unions recognised by the employer; where there are both types of representatives the employer may choose which group to consult. Consultation must begin in good time. If more than 100 employees are to be made redundant within 90 days, consultations must take place at least 90 days before the first dismissal. Otherwise consultation must take place at least 30 days before the first dismissal. In 2014 the DEL conducted consultation on, among other things, the 90-day consultation period for collective redundancies of more than 100 employees. It is possible that the period for consultation will be reduced to 45 days to bring it into line with the applicable law in England and Wales. The consultation must take place with a view to reaching agreement with the employee representatives and the employer must disclose the following information in writing to trade union representatives:

546 — — — — — —

Mark Reid and Caroline Maguire the reasons for the proposed dismissals; the numbers and descriptions of workers affected; the total number of employees of such description employed; the proposed method of selecting employees for dismissal; the proposed method of carrying out the dismissals; and the proposed method of calculating redundancy payments.

If an employer does not comply with the above requirements, a complaint can be made by the appropriate trade union to an industrial tribunal. If the tribunal upholds the complaint it may order the employer to pay wages to redundant or potentially redundant employees for a specified period.

Redundancy Payments Only an employee dismissed because the employer has ceased to or intends to cease to carry on business or because the requirements of the business to carry out work of a particular kind have diminished will be treated as redundant. An employee employed for two years or more who is made redundant may be entitled to a redundancy payment. The amount of the redundancy payment is based upon the employee’s age, length of continuous employment and gross average wage, as follows: — one-and-a-half week’s pay for each year of employment between the age of 41 and normal retirement age; — one week’ pay for each year of employment between the ages of 22 and 40; and — one-half week’s pay for each year of employment between the ages of 18 and 21. The maximum number of years to be taken into account in calculating a redundancy payment is 20 and the maximum amount of a week’s pay allowed in calculating payment is £470 as at February 2014 (this figure usually increases annually). Thus the current maximum payment is £14,100 (ie 20 years (when aged over 41) x 1.5 x £470).

Transfer of Undertakings and Service Provision Change Where an undertaking or business is transferred from one organisation to another, the Transfer of Undertakings (Protection of Employment) Regulations 2006 apply. Where a contract relating to the provision of services is transferred, the Service Provision Change (Protection of Employment) Regulations (NI) 2006 apply. For the purposes of this summary, both regulations will be referred

Employment Rights

547

to collectively as TUPE. The relevant law is very complex and so in any situation where TUPE may apply expert legal advice should be obtained. It should be noted that the definition of employee for the purpose of the TUPE Regulations is wider than that contained in the 1996 Order and may include some workers.

Transfer of Undertakings A business transfer occurs when there is a change of ownership of an economic entity which retains its identity. An economic entity is an organised grouping of resources which has the objective of pursuing an economic activity. In many cases it will be clear that there is an organised grouping of resources pursuing an economic activity. For example, if a factory is sold, the subject of the sale will most likely include tangible and intangible assets: premises, machinery, customers, goodwill and so on. A change of ownership can occur between both public and private undertakings engaged in economic activities regardless of whether or not they are operating for gain. A share transfer alone will not constitute a transfer under TUPE (but a share transfer may also involve a transfer of business which would come under TUPE). An administrative reorganisation of public administrative authorities or the transfer of administrative functions between public administrative authorities is not a transfer for TUPE. It is not necessary for there to be a transfer of property, so the grant, termination, surrender or assignment of a lease can be a TUPE transfer. So, for instance, if the tenancy of a pub or a petrol station changes (either reverting back to the landlord or to another tenant) and it continues to be run as the same business, the employees working there are protected under TUPE. The transferred economic entity must retain its identity. Simply speaking, if, for example, a shoe shop is sold and continues to operate as a shoe shop, TUPE will apply (assuming all other relevant TUPE conditions are fulfilled). Complications can arise for many reasons, but problems arise in particular when there has been only a partial transfer of a business, when there is an interruption in activities before or after transfer, when the business is fragmented after transfer, or when there is a change in the nature of the business post-transfer.

Service Provision Change A service provision change will involve: — the contracting out to a contractor of activities to be carried out on the client’s behalf; — the reassignment of activities carried out on behalf of a client from the original contractor to a subsequent contractor; or

548

Mark Reid and Caroline Maguire

— the assignment of work in-house, regardless of whether or not the services were previously carried out by the client. The TUPE Regulations apply only if, immediately before the service provision change: — there is an organised grouping of employees situated in Northern Ireland which has as its principal purpose the carrying out of the activities concerned on behalf of the client; — the client intends that the activities will, following the service provision change, be carried out by the transferee, other than in connection with a single specific event or task of short-term duration; and — the activities concerned do not consist wholly or mainly of the supply of goods for a client’s use. Typically, a service provision change might involve the transfer of a cleaning contract by a hospital from one cleaning company to another. But it would be unlikely to cover a transfer of a contract for the provision of security at a music festival, as this is a one-off event of short duration. As with a business transfer, complications in relation to service provision change can arise for many reasons. Problems may arise, for instance, where a contract is transferred to a number of different parties or where there is a change in the nature of the contracted work post-transfer.

The Effect of the TUPE Regulations The TUPE Regulations provide that contracts of employment and employment rights of all employees engaged in an undertaking or business immediately before it is transferred to a new owner are automatically transferred to the new proprietor unless the affected employee objects. The same applies to all employees assigned to a contract immediately before the transfer of that contract. TUPE applies both to a person employed immediately before the transfer and to a person who would have been so employed if he or she had not been dismissed by reason of the transfer or for a reason connected to the transfer. Thus, an employer cannot seek to evade TUPE by dismissing employees before the transfer takes place. In such circumstances, the employees will be deemed to be covered by the TUPE regulations. The new proprietor or contract principal automatically becomes the employer of the former employees on the same terms and conditions as before, subject to some exceptions, for example, occupational pension scheme membership. An employer is not allowed to vary an employee’s contract of employment if the sole or main reason for the variation is a TUPE transfer or is connected to the transfer. In such circumstances, an employer is not permitted to vary the terms and conditions of any employees affected by the transfer to their detriment so as to harmonise them. It is arguable that a variation of contract in relation to a TUPE transfer where such variation is to the benefit of the employee may be permissible. In addition, special rules apply where the transfer is from an insolvent transferor.

Employment Rights

549

All rights, powers, duties and liabilities of the transferor under or in connection with such contracts also transfer. This means that the new employer inherits liability for any acts or omissions of the old employer and can be liable for claims of discrimination, personal injury, health and safety breaches and breaches of statutory rights (eg rights under the Working Time Regulations, minimum wage, maternity rights etc) which employees might have had against their old employer. The transferee can also be liable in unfair dismissal: if the sole or main reason for a dismissal is connected with a TUPE transfer, the dismissal will be automatically unfair, provided the employee has one year’s service and comes within the definition of ‘employee’ under the 1996 Order. However, a dismissal for an ‘economic, technical or organisational reason’ may be a lawful dismissal (see TUPE reg 7(1)(b)).

Information and Consultation with Employees The TUPE Regulations impose information and consultation obligations on the employer of ‘affected employees’. Dismissal for performing the role of employee representative in this regard will constitute automatic unfair dismissal. Under the Information and Consultation of Employees Regulations (NI) 2005 employees have the right to request their employer to inform them of, and consult with them about, business matters which affect their employment. If at least 10 per cent of the workforce (which must be at least 15) exercise this right in the form required, the employer must set up a system for information and consultation. Alternatively, an employer can trigger the procedures under the Regulations by choosing to start the information and consultation process. The Transnational Information and Consultation of Employees Regulations 1999 apply to large-scale employers (those employing more than 1,000 employees). The right applies to any workforce employing more than 50 employees. Where an employer already has an existing agreement for consultation and information but a valid employee request is made under the Regulations, the employer can negotiate a new agreement or ballot employees. The employer must conclude a new agreement if 40 per cent or more of employees vote for this. Where agreement cannot be reached the Regulations provide for certain default provisions. Employee representatives must be elected and must be informed and consulted on the following issues: — recent and probable development of the undertaking’s activities and economic situation; — the situation, structure and probable development of employment and any anticipatory measures envisaged where there is any threat to employment; and — decisions likely to lead to substantial changes in work organisation or contractual relations.

550

Mark Reid and Caroline Maguire

Employees who act as representatives under the Regulations are entitled to paid time off to perform their role. They also have protection from dismissal or detriment on grounds of their activity as a representative under the Regulations. Dismissal for performing a role as an employee representative will constitute automatic unfair dismissal. Dismissal of an employee for seeking to exercise rights under the Regulations also constitutes automatic unfair dismissal. Where a trade union is recognised then the employer may continue to negotiate and consult with the union through any such pre-existing agreement provided the agreement covers all employees and not only trade union members. A complaint about an employer’s failure to inform and consult under the Regulations should be made to the Industrial Court and disputes may also be referred to the LRA for conciliation. More information is available in the DEL’s booklet entitled Information and Consultation in the Workplace (2008).

Trade Union Law A trade union is defined by article 3 of the Industrial Relations (NI) Order 1992 as an organisation which consists: — wholly or mainly of workers of one or more description and has as its principal purpose the regulation of relations between workers of that or those descriptions and employers or employers’ associations; or — wholly or mainly of an affiliated or constituent group of such organisations or their representatives. The basis of a trade union’s right to exist is the 1992 Order, article 3 allows it to enter into contractual obligations and to sue and be sued in its own name. The property of a trade union is vested in trustees for the union. A trade union can be prosecuted for a criminal offence: even though a trade union is in law an ‘unincorporated association’, any judgment, order or award may be enforced against it as if it were a an incorporated body. The 1992 Order distinguishes between independent unions and others. A union is independent if it is not under the control of an employer or a group of employers or one or more employer’s associations and is not liable to interference by an employer or any such group or association arising out of the provision of financial or material support or by any other means which tends towards such control. Only recognised independent trade unions are accorded statutory rights concerning disclosure of information and consultation, and only an independent trade union can apply for statutory recognition (see below).

Employment Rights

551

Protection for Trade Union Membership and Activities A certain degree of protection and some enforceable rights have been given to employees concerning trade union membership. Thus, article 136 of the 1996 Order provides that an employee can complain of unfair dismissal if he or she is dismissed: — for being, or proposing to become, a member of an independent trade union; — for having made use or having proposed to make use of trade union services at an appropriate time (ie time which is either outside working hours or during working hours if the employer has given consent); — for having failed to accept an inducement from his or her employer in relation to trade union membership or activities (art 77A of the 1996 Order); — for having failed to accept an inducement in relation to collective bargaining (art 77B of the 196 Order); — for taking part at an appropriate time in the activities of an independent trade union; or — for non-membership of a trade union (this prevents a ‘closed shop’ situation). An employee claiming unfair dismissal on the above grounds can apply to a tribunal for an ‘interim relief ’ order (an order whereby the contract is to continue for the purposes of pay pending a hearing of the proceedings). Under article 73 of the 1996 Order a worker can present a complaint to an industrial tribunal if he or she is ‘subjected to a detriment’ short of dismissal by his or her employer for the purpose of: — preventing or deterring the worker from being or seeking to become a member of an independent trade union or penalising the worker for doing so; — preventing or deterring the worker from taking part in the activities of an independent union at an appropriate time (as defined above); — preventing or deterring the worker from making use of trade union services at an appropriate time, or penalising the worker for doing so; or — compelling the worker to become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.

Trade Union Recognition An independent trade union is entitled to seek recognition under the provisions of Schedule 1A to the Trade Union and Labour Relations (NI) Order 1995 to be entitled to conduct collective bargaining in respect of negotiations relating to pay, hours, holidays and additional matters agreed between the union and employer. An employer can expressly or impliedly agree to recognise a trade union

552

Mark Reid and Caroline Maguire

voluntarily, but if an employer rejects or fails to respond to a trade union’s request for recognition within 10 days, or if recognition has not been granted within 20 days of negotiations commencing, an application can be made to the Industrial Court. The Industrial Court is obliged to take various steps under a strict timetable upon receipt of an application for union recognition. It has published a useful document entitled Statutory Recognition—Guidance for the Parties (2009) (www.industrialcourt.gov.uk/statutory_recognition_guidance_for_parties_-_ march_2009-2.pdf ). Under Part VIII of Schedule 1A to the 1995 Order a worker subjected to a detriment or an employee who is dismissed can complain to an industrial tribunal if the reason for detriment or dismissal is because the worker: — acted with a view to obtaining or preventing recognition of a union by the employer; — indicated that he or she supported or did not support recognition of a union by the employer; — acted with a view to securing or preventing the ending of bargaining arrangements; — indicated that he or she supported or did not support the ending of bargaining arrangements; — influenced or sought to influence the way in which votes were to be cast by other workers in a ballot; — influenced or sought to influence other workers to vote or to abstain from voting in such a ballot; — voted in a ballot; or — proposed to do, failed to do, or proposed to decline to do, any of the things referred to above. Any such dismissal will be automatically unfair and no qualifying period to claim unfair dismissal will apply. DEL issued a Code of Practice on Access and Unfair Practices during Recognition and Derecognition Ballots in 2006.

Collective Bargaining and Legal Rights for Unions The normal method by which trade unions and employers or employers’ associations negotiate is through collective bargaining. By article 26 of the Industrial Relations (NI) Order 1992 collective agreements are conclusively presumed not to have been intended by the parties to be legally enforceable, unless the agreement is in writing and contains a provision which states that the parties intended the agreement to be a legally enforceable contract. In practice, collective agreements are not enforceable. But certain terms of collective agreements, such as wage rates and holiday entitlement, can be incorporated into an individual’s contract of employment if that is agreed by an individual employee and his or her employer.

Employment Rights

553

Part V of the 1992 Order states it is the duty of every employer, if requested to do so, to disclose information about his or her undertaking to the representatives of any independent trade union which is recognised for the purposes of collective bargaining. The information must relate to matters and be in relation to descriptions of workers in respect of which the trade union is recognised by the employer and be: — information without which the trade union representatives would be to a material extent impeded in carrying on with the employer such collective bargaining; and — information which it would be in accordance with good industrial relations practice that the employer should disclose for the purposes of collective bargaining. Further details on such information and consultation obligations are set out in the LRA Code of Practice on Disclosure of information to trade unions for collective bargaining purposes (2006). A complaint of failure to disclose information can be referred to the LRA, which will attempt conciliation. If this fails, the matter may then be referred by the LRA to the Industrial Court, which, if it finds the complaint well-founded, may make a declaration stipulating a period within which disclosure is to be made. If the information is still not forthcoming, a further complaint may be made throughthe LRA to the Industrial Court and may request that certain terms and conditions be included in the terms and conditions of employment of specified employees. The Industrial Court may then order that the contracts of the employees specified in the claim should include the specified terms and conditions or such other terms and conditions which the Court considers appropriate. If an employer recognises an independent trade union for collective bargaining purposes, consultation must take place with such union representatives in advance of 20 or more redundancies or in advance of a transfer of an undertaking or of a change to a contract on service provision. Alternatively, an employer may consult with representatives of the employees (see above section on consultation on redundancies). In respect of health and safety, the employer must recognise union-appointed safety representatives. Only in the absence of such representatives may an employer consult employees or their representative on health and safety matters (see above section on health and safety at work). Enforcement of a failure to consult is by way of complaint to an industrial tribunal.

Trade Union Administration Part II of the Trade Union and Labour Relations (NI) Order 1995 concerns trade union administration and adds to the requirements placed on trade unions by Part II of the 1992 Order. Unions are required to compile and maintain a register of the names and addresses of their members. A union must inform its

554

Mark Reid and Caroline Maguire

members and the Certification Officer about the conduct of its financial affairs. The Certification Officer has power to direct a trade union to produce documents relating to its financial affairs and to appoint inspectors to investigate the financial affairs of a union.

Trade Union Elections Part III of the 1995 Order, as amended by the Employment Relations (NI) Order 2004, concerns trade union elections. It applies to trade unions with their head office in Northern Ireland and it complements existing requirements placed on trade unions with their head office based in Great Britain. A trade union must ensure that every member of its executive committee has been elected to that position by secret postal ballot within the previous five years, although this provision does not apply to union employees who are within five years of retirement age. Presidents and general secretaries whose position is effectively honorary do not need to be elected, nor does a president who has been properly elected to the union’s executive or as its general secretary in the last five years. A union is required to appoint a qualified independent person to scrutinise and report on the conduct of such elections. Where it is contended that a trade union has not complied with the above requirements, an application may be made to the Certification Officer or to the High Court. For more information see DEL’s booklet entitled Trade Union Executive Elections (2010).

Rights of Trade Union Members and Non-members Part IV of the 1995 Order, as amended by the Employment Relations (NI) Order 2004, concerns the rights of trade union members and in particular provides protection against workers being penalised on grounds of union membership or nonmembership or for other reasons in relation to trade union membership or activities. Article 29 establishes a right of union members to a ballot before industrial action is taken. Where action is taken without the support of a ballot, a union member may apply to the High Court for an order. Articles 31–34 establish a right not to be unjustifiably disciplined. Types of conduct in respect of which discipline is considered unjustifiable include: — failure to participate in, or conduct indicating opposition to, industrial action; and — alleging that a union official has acted contrary to union rules or unlawfully. Union members who consider they have been unjustifiably disciplined may complain to an industrial tribunal for redress. For more information see the DEL’s booklet entitled Unjustifiable Discipline by a Trade Union (2011).

Employment Rights

555

The 1995 Order provides that an employer may not deduct union subscriptions from a worker’s wages under check-off arrangements unless the worker has authorised such deductions in writing within the previous three years. Where it is alleged that an employer has made an unauthorised deduction, a complaint may be made to a tribunal. Articles 38–41 establish the right of a union member, enforceable by a complaint to a tribunal, not to be unreasonably expelled from membership of a trade union. For more information on rights relating to union membership see DEL’s booklet entitled Union Membership: Rights of Members and Non Members (2011). In April 2014 the Employment Relations (NI) Order 1999 (Blacklists) Regulations (NI) 2014 came into effect. These prohibit the compilation, supply, sale or use of blacklists by employers against employees or potential employees for the purpose of discriminating against them on grounds of their trade union membership or activities. DEL has issued a code of practice entitled Northern Ireland Guidance—Blacklisting of Trade Unionists (2014).

Trade Union Political Funds Part V of the 1995 Order relates to the political funds of Northern Ireland trade unions. It provides that union funds must notbe used for political objectives unless approved by a secret ballot of union members, which is to be held at least every 10 years. A trade union member is exempt from contributing to a trade union’s political fund unless the member has contracted in to the fund. It is unlawful for a trade union to deduct money from a member for the political fund unless the member has signed a ‘contracting in’ notice. Funds paid in furtherance of political objectives must be paid from a separate political fund. Union members who do not contribute to the political fund must not be disadvantaged and may complain to the Certification Officer if they consider this to be the case. The political objectives for which funds can be paid from the political fund are: — the contribution to the funds of or payment of any expenses incurred by a political party; — the provision of any service by or property for the use by or on behalf of a political party; — in connection with the selection of a candidate for political office; — the maintenance of any holder of a political office; — the holding of any meeting by or on behalf of, a political party; or — the production, publication or distribution of any literature, document, film, sound recording or advertisement, the main purpose of which is to persuade people to vote for a political party. A complaint may be made to the Certification Officer or to the High Court that a union has not conducted a ballot in accordance with the system approved by

556

Mark Reid and Caroline Maguire

the Certification Officer. For more information on this topic see DEL’s booklet entitled Trade Union Political Funds (2011).

Industrial Action Part VIII of the 1995 Order consolidates and reforms the legal liability of trade unions and their members when engaged in industrial action. Article 97 provides that an act done by a person in contemplation or furtherance of a trade dispute shall be protected from certain liability in the law of tort. On the other hand, immunity from action in tort will not apply in certain circumstances (see below). Article 104 of the 1995 Order provides that a call by a trade union to take industrial action will not be protected unless the industrial action has the support of a ballot. Subsequent articles stipulate the balloting procedures that must be followed before lawful industrial action may be undertaken, and for a ballot where more than 50 members are given entitlement to vote an independent scrutineer must be appointed. A code of practice was issued in 2006 by DEL entitled Industrial Action Ballots and Notice to Employers. In order for industrial action to be protected from certain tort claims, article 118 of the 1995 Order provides that the union must, not later than seven days before the industrial action is intended to start, give written notice to the employer of the number and categories of employees which the union envisages will take part in the action and the workplaces at which such employees work. Alternatively, if the employer makes deductions related to union membership from its employees the union may supply information relating to those employees which will allow the employer to deduce the number and categories of employees who the union envisages will take part in the action and the workplaces of such employees. The union is not required to provide the names of the employees who propose to take part in the action. The notice must indicate whether the action will be continuous or discontinuous, and state when the action is intended to start (if it is continuous) or the days on which it is intended to take place (if it is discontinuous).

Dismissal of Striking Workers An employee dismissed while taking unofficial industrial action will not normally be able to claim unfair dismissal. However, it will be unfair to dismiss an employee because he or she is taking protected industrial action unless the industrial action lasts for more than 12 weeks and the employer has taken such procedural steps as are reasonable to try to resolve the dispute. Industrial action is ‘protected’ where the requirements of Part VIII of the 1995 Order have been fulfilled (see above). A dismissal can be brought to an industrial tribunal regardless of the employee’s length of service and a complaint of unfair dismissal may also be taken by an

Employment Rights

557

individual taking protected industrial action if the employer dismisses some but not others who are taking industrial action or offers re-engagement to an employee dismissed while taking part in industrial action within three months of dismissal but not to all those dismissed.

Liability to Pay Compensation for Industrial Action Industrial action can give rise to liability in both civil and criminal law both for a union and for individuals engaged in such action. A union or individual can benefit from immunity in relation to such liability provided certain criteria are fulfilled. In summary these are: — the industrial action must be in contemplation or furtherance of a ‘trade dispute’; — the industrial action must have been endorsed by a properly conducted ballot (see above); — notice of the industrial action must have been given to the employer (see above); — the action must not be ‘secondary action’, except when it comprises lawful picketing; — the action is not intended to promote a closed shop practice or to prevent employers using non-unionised suppliers; — the action is not in support of any employee dismissed while taking unofficial industrial action; and — the action does not involve unlawful picketing (see below). A union may be held responsible for the actions of its officials (so-called vicarious liability). In respect of the economic wrongs mentioned above, a union will be vicariously liable only for specified unlawful actions which are authorised or endorsed by a ‘responsible person’, defined by article 21 of the Industrial Relations (NI) Order 1992. The union will not be liable if the action has been ‘repudiated’ by the union as soon as reasonably practicable after it becomes aware of the action. To be a repudiation, the union must take specific steps under article 21A of the 1992 Order, namely: — give written notice of the repudiation to the committee or the official who has authorised or endorsed the action; — do its best to give individual written notice of the fact and date of repudiation to every member of the union whom the union has reason to believe is taking part or might take part in the industrial action; and — do its best to give individual written notice of the fact and date of repudiation to the employer of every such member; the written notice must be in the specific form set out in article 21A of the 1992 Order. Where immunity does not apply an employer or other affected party may apply for an injunction to prevent the industrial action. If loss has occurred as a result

558

Mark Reid and Caroline Maguire

of action and the union is found liable in court proceedings the union can be ordered to pay damages, the size of the award often depending on the size of the union’s membership. Even where immunity applies, it is limited to specific acts. If workers taking part in industrial action or their organisers commit other civil or criminal wrongs during such action they may be liable for such wrongs. DEL has published two booklets which provide detail on this issue entitled Industrial Action and the Law: A Guide for Employers (2011) and Industrial Action and the Law: A Guide for Employees (2011).

Picketing There is no general right to picket. As with trade disputes, an immunity is conferred, this time by article 98 of the 1995 Order which provides that it shall be lawful for a person to picket: — at or near his or her own place of work; or — if he or she is an official of a trade union, at or near the place of work of a member of that union whom he or she is accompanying and representing. A person who does not normally work at one particular place or for whom it is impracticable to picket at his or her actual place of work may picket at the premises from which he or she works or from which the work is administered. A person who is no longer employed may picket at his or her former place of work in contemplation or furtherance of a trade dispute, but only if the termination of his or her employment gave rise to or is connected with the dispute. The picketing must be for the purpose of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working. Pickets can easily fall foul of both the criminal and civil law. For instance, they may be liable to criminal charges for obstruction of the highway or of the police, for intimidation or for contravention of the Public Order (NI) Order 1987 in respect of meetings and marches (see Chapter 8). They may also be liable to a civil action for trespass or nuisance. DEL issued a code of practice on picketing in 1998. Whilst not legally binding, the provisions of the code can be taken into account in any proceedings where the court or tribunal considers them relevant. The code specifically states that ‘in general’ the number of pickets at any entrance to or exit from a workplace should not exceed six and that ‘frequently’ a small number will be appropriate.

Employment Rights

Useful Contacts Department for Employment and Learning (DEL) Adelaide House 39–49 Adelaide Street Belfast BT2 8FD tel: 028 9025 7777 email: [email protected] http://www.delni.gov.uk/ Equality Commission for Northern Ireland Equality House 7–9 Shaftesbury Square Belfast BT2 7DP tel: 028 90 500 600 textphone: 028 90 500 589 http://www.equalityni.org/Home Labour Relations Agency (LRA) 2–16 Gordon Street Belfast BT1 2LG tel: 028 9032 1442 email: [email protected] http://www.lra.org.uk/ Law Centre (NI) 124 Donegall Street Belfast BT1 2GY tel: 028 9024 4401 fax: 028 9023 6340 http://www.lawcentreni.org/ Pensions Regulator The Pensions Regulator PO Box 16314 Birmingham B23 3JP http://www.thepensionsregulator.gov.uk/ UK Pay and Work Rights helpline tel: 0800 917 2368

559

24 Housing Rights SHARON GEARY*

According to statistics for 2012–2013 issued by the Department for Social Development NI, the occupied housing stock in Northern Ireland consists of 67 per cent owner-occupied, 16.2 per cent socially rented, and 16.8 per cent privately rented. Housing is regulated by the Department for Social Development (DSD). The Social Development Committee of the Northern Ireland Assembly advises the Department on issues of policy, scrutinises Departmental proposals and suggests amendments to proposed legislation.

Owner Occupation Purchasing a Home Purchasing a house is one of the biggest financial undertakings an individual will make. Anyone considering purchasing a property with a mortgage should seek advice from an independent mortgage adviser as there is much competition in the mortgage market and it may pay to shop around. It is also important to choose a lender that is registered with the Financial Conduct Authority (FCA). Details of registered financial firms can be found at www.fca.gov.uk. A mortgage adviser or lender should be able to provide information on the following areas prior to a person making a final decision to buy a house: — — — —

the repayment method (ie the type of mortgage) and the repayment period; the type of interest rate; how much future repayments, after any fixed or discounted period, might be; whether an insurance service has to be taken with the mortgage and, if so, whether the insurance must be arranged by the lender or intermediary; and

* The author is grateful to her colleagues at Housing Rights Service for their assistance with this chapter.

562

Sharon Geary

— the costs and fees which might be involved with the mortgage, for example, valuation fees, arrangement fees, legal fees, early redemption fees and high percentage lending fees.

Help to Buy Scheme The government launched a new ‘Help to Buy’ mortgage scheme in October 2013. The scheme applies to the whole of the UK and is designed to help people purchase a home with a deposit of just 5 per cent. It is expected to run for three years. Under the terms of the scheme, the government will guarantee 15 per cent of the loan to the lender, for a fee, in order to encourage the lender to offer the loan. Prospective buyers who apply to the scheme will have to show that they can afford the mortgage payments by way of completing an ‘affordability’ check. There is no limit on the buyer’s level of income. The scheme is available for first-time buyers and home owners who are looking to move to a new property. The property can be newly built or already existing. To qualify for a Help to Buy mortgage guarantee, the prospective buyer must want to buy a home that will sell for £600,000 or less. It must not be a shared ownership or shared equity purchase (such as co-ownership: see below), a second home, or a property which is being bought to let. Further information on the scheme is available at www.nidirect.gov.uk and www.helptobuy.org.uk/.

Co-ownership The Co-Ownership Scheme is administered by the Northern Ireland Co-Ownership Housing Association (NICHA). It aims to reduce the initial cost of home ownership through ‘equity sharing’, which means that the client buys part of the property and rents the rest. The scheme is aimed primarily at first-time buyers and people on low incomes. There may be times when NICHA operates a quota system, whereby the number of applications accepted at any time is capped. NICHA applies a price limit on the value of properties which it will consider and this is reviewed regularly. Where a client wishes to purchase a property through NICHA he or she can choose to purchase between 50 per cent and 90 per cent of the equity in the property, with the remaining share of the property being rented from NICHA. The client can at any time increase his or her share in the property in ‘slices’ of 5 per cent, or buy all of the unowned equity at once. This process is known as ‘staircasing’.

Mortgage Repayments and Other Housing Costs It is important that a potential borrower works out how much he or she can afford to borrow. It is useful to make a comparison of expenditure and income to

Housing Rights

563

determine what disposable income is available. Borrowers should always consider what implications a change in their personal circumstances, such as the loss of a job or the breakdown of a relationship, may have on their capacity to repay a mortgage loan, as any default in repayments could lead to possession proceedings being initiated. In the current climate of increasing housing debt, it is important that people do not overstretch their budget and that they bear in mind future increases in housing costs, for example, interest rate rises. Failure to maintain mortgage payments can lead to a lender pursuing a possession action. However, this can be done only if the due process of the law is followed. Furthermore, lenders and borrowers will also be expected to have tried to resolve matters before going to court. A revised version of the Northern Ireland ‘Pre-Action Protocol for Possession Proceedings based on Mortgage Arrears in respect of Residential Property’ was released in 2011. This sets out what the court expects from both the lender and borrower prior to the matter getting to court. The aim is to resolve any mortgage difficulties without having to resort to court proceedings. A copy of the protocol can be found at www.courtsni.gov.uk. Anyone struggling to maintain mortgage payments should seek advice at the earliest opportunity from Housing Rights Service, a Citizens’ Advice Bureau or another independent advice agency. An adviser can mediate between the borrower and the lender to produce a realistic plan to deal with the arrears. Online help is also available from www.housingadviceNI.org, which has a range of downloadable and interactive tools to help people with budgeting and with how to approach their creditors. Housing Rights Service also operates a Mortgage Debt Advice Service for borrowers who are in financial difficulty. Further details on this service can be found at www.housingrights.org.uk. Even if possession proceedings have been initiated it is not too late to liaise with the lender to try to resolve the matter. Possession proceedings are heard in the Chancery Division of the High Court. At court, a judge called the Chancery Master has a number of options: — Dismiss the application: this ruling may be made if the arrears are small or have already been cleared. — Adjourn the application: the court may make this ruling to give the borrower more time to devise a plan to repay the arrears or to allow both parties to resolve any disputes about the amount of money owed. — Issue a suspended possession order: this is the most common decision taken; the court grants an order for possession but the order is suspended for a reasonable period of time, as determined by the court, to give the client a chance to pay off the arrears; if the agreement to repay the arrears is broken the lender can return to court to have the order for possession enforced. — Grant a possession order but stay its enforcement: here possession is granted but the borrower is allowed a longer period of time (ie longer than 28 days) to find alternative accommodation or to sell the property; even at this stage an offer to repay the arrears can still be made if it becomes apparent that some payments towards the arrears are possible.

564

Sharon Geary

— Grant an order for immediate possession: the court may grant immediate possession to the lender, with the order usually coming into force after 28 days; even at this stage it is still possible to avoid losing the home by showing the court than repayment can be made. A person who loses their home as a result of mortgage arrears can apply for rehousing in the social rented sector (see page 567) and may qualify for assistance under the homelessness legislation (see page 590).

Rates In Northern Ireland, rates on domestic properties are based on a district rate and a regional rate. The amount of rates payable is determined by the capital value of the property as assessed by Land and Property Services in accordance with the Rates (Capital Values, etc) (NI) Order 2006. The capital value is the amount a property could reasonably have been sold for on the open market on 1 January 2005. Any changes in the property market since the valuations were carried out on 1 January 2005 will not affect the capital value of a property until a review of capital values is next carried out. From 1 October 2011, vacant domestic dwellings have also been liable for rates. A vacant dwelling is a dwelling which is unoccupied, unfurnished and not used for storage. Owner-occupiers may be able to receive help with paying their rates if they are on a low income or are disabled, a carer or a lone pensioner. Further information can be found at www.dfpni.gov.uk/lps.

Insurance The main types of insurance associated with purchasing a domestic property are: — buildings insurance, which insures the structure of the house against damage; — contents insurance, which insures the contents of the house against damage and theft; — payment protection insurance, which insures the payment of a mortgage if there is a loss of earnings; — life assurance, which insures the mortgage costs in the event of the borrower dying; and — critical illness cover, which pays out a lump sum when a person is diagnosed with a particular illness. Before taking out any of the above types of insurance, the firm involved should provide either a policy summary or a ‘Key Features Document’, which will set out the main characteristics of the insurance. All insurance policies have different restrictions on them and therefore it is always important to know exactly what type of policy is being entered into and what it covers.

Housing Rights

565

Repairs and Improvements Home owners are responsible for carrying out repairs and improvements to their home. Depending on the type of work involved, the home owner may need to get planning permission or building approval. The Planning Service looks at the siting of a building, its visual impact and the general aesthetics, whereas building control, which is overseen by local councils, considers the health and safety of people in and around the building. It may be possible for home owners to receive some financial assistance with carrying out repair and improvement works through the Housing Executive’s Home Improvement Grants Scheme, although funding through this Scheme has been more restricted since the economic downturn. The Scheme was introduced by the Housing (NI) Order 2003 (2003 Order) and is aimed at improving the standards of private sector properties, that is, owner-occupied and privately rented homes. Most of the grants available are discretionary. They are now awarded only in exceptional circumstances, for example, where the failure to get the repairs works done could be a real risk to the occupant’s health and safety. There are also some mandatory grants which are still available to eligible applicants. The 2003 Order provides for the following grants as part of the Scheme: — Renovation grant: this is a discretionary grant aimed at bringing properties up to the fitness standard; the Housing Executive must be satisfied that the award of a renovation grant is the ‘most satisfactory course of action’ in order to bring the property up to standard; applications can be made by owneroccupiers, tenants and landlords. — Replacement grant: this is a discretionary grant aimed at rebuilding unfit dwellings in certain designated rural areas; it may be awarded where the work required to make a property fit would involve such extensive demolition or incur such high costs that renovation would not be the best course of action; applications can be made by owner-occupiers and landlords. — Common parts grant: this is a discretionary grant aimed at improving the common parts of a building containing one or more flats, for example, the hall, stairs or roof; applications can be made by landlords and tenants. — Houses in multiple occupation (HMO) grant: this is a discretionary grant aimed at bringing HMOs up to normal fitness standard and ensuring that they also meet the HMO standard for the number of occupants; this latter standard is separate from the normal fitness standard and is set out in article 80(2) of the Housing (NI) Order 1992; applications can be made by landlords. — Home repair assistance grant: this is a discretionary grant which enables the Housing Executive to provide money or materials to help with works to repair, adapt or improve a private property or a mobile home; applications can be made by owner-occupiers and tenants. — Disabled facilities grant: this is a mandatory grant aimed at making the home of a person with a disability suitable for his or her needs and is based on the

566

Sharon Geary

recommendation of an occupational therapist; applications can be made by owner-occupiers, tenants and landlords. — Repair grant: this is a mandatory grant to meet some or all of the cost of carrying out repairs required after a local district council has issued a statutory notice such as a public health notice, a notice of unfitness or a notice of disrepair; applications can be made by landlords, agents and tenants. Depending on what grant is applied for, there will be specific eligibility criteria which may relate to the interests of the owner, tenant or landlord, the location and condition of the property and the income of the applicant. Further information on the Home Improvement Grants Scheme is available at www.nihe.gov.uk.

Other Help The Warm Homes Scheme provides grant aid to privately renting tenants and owner-occupiers who need help to keep their homes warm. The Scheme is currently managed by H & A Mechanical Services Ltd and Bryson Charitable Group. There are two levels of the scheme, known as ‘Warm Homes’ and ‘Warm Homes Plus’. The Warm Homes Scheme offers help with a range of insulation measures to households which are in receipt of certain qualifying benefits. Warm Homes Plus can provide a grant to help with the cost of converting to a better heating system. Further information can be found at www.warm-homes.com. Grant aid may also be available through the Energy Savings Trust and local energy suppliers. A helpline for energy advice information was launched in 2012. This service provides impartial energy advice and information on any grants which may be available to all types of householders. The service is run by Bryson House and can be contacted on 0800 1422 865. Financial assistance for the cost of repairs and improvements may also be claimed from the Social Fund by applying for one of the following: — community care grant: this may be awarded for minor repairs and improvement and does not have to be repaid; — crisis loan: this may be awarded for minor repairs and improvements and has to be repaid, although the loan is interest free; or — budgeting loan: this may be awarded to meet intermittent expenses for improvements, maintenance and security of the home and has to be repaid, but is also interest free. Eligibility criteria will apply: see www.dsdni.gov.uk/social_fund_guide. See too Chapter 25.

Disposal of Property Under normal circumstances selling a property is a fairly straightforward process, achieved most easily through retaining the services of an estate agent and

Housing Rights

567

solicitor. However, the process becomes more complicated when the sale is due to relationship breakdown, arrears or some other property dispute. In all cases it is important to take legal advice at the earliest opportunity. Owners who find it difficult to sell their homes because of civil disturbances may benefit from the SPED Scheme (Special Purchase of Evacuated Dwellings). This allows the Housing Executive to purchase a dwelling which cannot be sold because of its location and proximity to civil disturbances or in cases where the owner-occupier has been intimidated into leaving their home without first being able to sell the property (Housing (NI) Order 1988, (1988 Order) art 29). A person in this situation should seek advice from Housing Rights Service, a Citizens’ Advice Bureau, an independent advice centre or a solicitor.

Social Rented Housing Most social rented housing in Northern Ireland is owned and managed by the Northern Ireland Housing Executive, which was established in 1971; it now has about 88,000 dwellings. Registered Housing Associations (RHAs) own and manage some 29,000 dwellings and in recent years the building of social housing has increasingly become the role of these associations. There is currently a debate about the future of social housing in Northern Ireland and, in particular, the future of the Housing Executive. Further information on the Social Housing Reform Programme can be found at www.dsdni. gov.uk.

The Housing Selection Scheme In Northern Ireland those wishing to access socially rented housing from the Housing Executive or an RHA (collectively known as ‘social landlords’) are assessed and awarded points under the Housing Selection Scheme. Under this Scheme, accommodation is allocated according to the housing need of the applicant. It covers all applicants for social housing, including those to whom the Housing Executive owes a duty under the homelessness legislation (see page 590), as well as current tenants who are seeking a transfer to alternative accommodation. Following assessment, applicants are placed on a waiting list which is then used by all social landlords when allocating accommodation. A person is entitled to apply for housing under the Housing Selection Scheme provided that: — he or she is owed a statutory duty under 1988 Order, that is, is a ‘full duty applicant’ (see page 590);

568

Sharon Geary

— he or she is nominated through the National Mobility (HOMES) Scheme and wishes to move to Northern Ireland from social housing elsewhere in the UK (this scheme does not currently operate and is due to be replaced by an alternative scheme in the future); or — he or she meets the requirements as to age (generally the age limit is 18 years) and has a connection with Northern Ireland (ie is, or was, ‘ordinarily or habitually or normally’ resident in Northern Ireland, or is employed, or seeking employment, in Northern Ireland, or has a ‘substantial connection’ with Northern Ireland because of other circumstances, such as family support or educational purposes).

Ranking Applicants Under the Housing Selection Scheme points are awarded under the following categories: — Intimidation: Where a person’s home has been destroyed or they are at risk of injury or death if they remain in the property due to a terrorist, racial or sectarian attack, an attack motivated by hostility because of the person’s disability or sexual orientation, or an attack by a person who falls within the scope of the Housing Executive’s statutory powers concerning neighbourhood nuisance or similar forms of anti-social behaviour. — Insecurity of tenure: Where a person has been assessed as a ‘full duty applicant’, or is homeless but is not a ‘full duty applicant’, or has been residing in temporary accommodation for six months or more. — Housing conditions: Where people are sharing accommodation, or are living in overcrowded conditions, or with a lack of amenities or disrepair, or have been in urgent housing need for some time. — Health and social well-being: Where people are assessed for their ‘functionality’ (ie their mobility around the home), support and care needs, social needs and complex needs. Individuals with complex needs, that is, intensive care or support needs, are an exception to this assessment process and are placed on an administrative list without reference to points. Intensive care or support may be provided through specialist supported housing or general needs accommodation, with a pre-agreed, tailored care package for the relevant applicant or household member. All participating social landlords allocate accommodation to applicants who are on the waiting list. The general rule is that properties are offered to those with the highest points. Each applicant is entitled to three reasonable offers of accommodation. When considering what is reasonable, consideration must be given to the specific needs of the applicant or the household and in particular the size and condition of the accommodation and the suitability of its location and features.

Housing Rights

569

Security of Tenure Prior to the implementation of the 2003 Order all new social tenancies were provided with a secure tenancy, that is, essentially a tenancy for life (art 27 of the 1983 Order). However, since 2004 the Housing Executive and other RHAs have been able to operate an introductory tenancy scheme. Where this has been adopted, new tenants are given a 12-month introductory tenancy. Provided that the tenant completes the 12-month period to the satisfaction of the landlord, he or she will be given a secure tenancy. Introductory tenants do not enjoy all of the same statutory rights as secure tenants.

Tenancy Agreements Each tenant is given a standard tenancy agreement, which is a legal document setting out the terms and conditions of the occupation of the premises. The tenant should also be given a copy of the ‘Tenant’s Handbook’, which outlines the rights and duties of both the tenant and the Housing Executive or RHA. In the case of RHAs, tenancy agreements will vary between Associations. However, the tenancy agreement should state that the Association is registered with the DSD and define clearly the landlord’s statutory responsibility for internal decorations and repairs.

Tenants’ Rights The 1983 and 2003 Orders set out a number of statutory rights that are enjoyed by secure and introductory tenants.

The Right to Succession Under article 23 of the 1983 Order, when a secure tenant dies, the tenancy can be passed on to a spouse or civil partner provided that person occupied the property as his or her principal home at the time of the tenant’s death. A close relative, such as a parent, grandparent, uncle, aunt, nephew, niece, child, grandchild, stepchild or member of a couple, can also succeed to the tenancy if he or she resided with the tenant prior to the tenant’s death for a period of at least 12 months. Only one succession can occur. A person may also be eligible to succeed under the rules of the Selection Scheme where: — the applicant was the personal partner of the deceased and they had been living together for a year;

570

Sharon Geary

— the applicant is a carer who has given up a tenancy or licence, or sold their home, in order to live with and care for the tenant who has later died; or — the applicant has accepted responsibility for the deceased tenant’s dependent children. Under article 13 of the 1983 Order, when an introductory tenant (who was not him- or herself a successor) dies, a person will qualify to succeed if he or she occupied the property as their principal home at the time of the tenant’s death and: — they are the tenant’s spouse or civil partner; or — they are another member of the tenant’s family and resided with the tenant throughout the period of 12 months prior to the tenant’s death. In this instance, the successor will become an introductory tenant.

The Right to Take in Lodgers Alls secure tenants have an unrestricted right to take in lodgers and do not need permission from their social landlord (art 30(1) of the 1983 Order). However, taking in lodgers may affect a tenant’s eligibility for housing benefit.

The Right to Sublet All secure tenants enjoy a right to sublet part of their home with approval from their landlord (art 30(2) of the 1983 Order). The tenant must continue to occupy the dwelling as their only or principal home. If they were to sublet the entire dwelling they could lose their tenancy.

The Right to Assign Assignment of a tenancy occurs when an existing tenant transfers his or her tenancy rights to another person. All secure and introductory tenants need consent from their landlord if they wish to assign their tenancy. Assignment can take place in accordance with article 32 of the 1983 Order where: — it is as a result of a court order; or — it is to a person who would have succeeded to the tenancy had the tenant died before the assignment took place. In addition, a social landlord has discretion to allow an assignment under its own policy rules, for example, where it is no longer practicable for an existing tenant to continue to act as such or the tenant leaves and someone else takes responsibility for the tenant’s dependent children.

Housing Rights

571

The Right to Exchange Secure tenants have the right to exchange their home with another secure tenant, provided they obtain written consent from their landlord (art 32(1) of the 1983 Order). Introductory tenants do not have a statutory right of exchange, but there may be exceptional circumstances where the social landlord will agree to an exchange as a matter of policy.

The Right to Carry Out Improvements All secure tenants have a right to carry out certain improvements to their home provided they have obtained written consent from their landlord (art 34 of the 1983 Order). The tenant may also be entitled to compensation for the improvement if they leave the tenancy at a future date without having enjoyed the full benefit of the improvement.

The Right to Information Secure tenants must be provided with information on the terms of their secure tenancy and also on housing allocation (arts 38 and 39 of the 1983 Order). Article 18 stipulates that social landlords who operate an introductory tenancy scheme must publish information about the scheme, including the express terms of its introductory tenancies, the provisions of the 2003 Order in relation to introductory tenancies, and the landlord’s repairing obligations.

The Right to Consultation Secure tenants have the right to be consulted about any changes in the conditions of their tenancy or any housing management proposals such as improvement works or demolition of accommodation (art 40 of the 1983 Order). Under article 19 an introductory tenant’s right to consultation is more limited.

The Right to Repair The statutory Right to Repair Scheme entitles all secure tenants of the Housing Executive to have certain qualifying repairs carried out, and to be paid compensation if the repairs are not carried out within specified time limits (art 38A of the 1983 Order). The 1983 Order does not require RHAs to operate a statutory scheme but many RHAs operate a voluntary right to repair scheme which is available to all of their tenants, both secure and introductory. Article 17 of the 2003

572

Sharon Geary

Order allows the statutory Right to Repair Scheme to be extended to the Housing Executive’s introductory tenants.

The Right to Buy Under the House Sales Scheme most secure tenants have a right to buy the dwelling in which they reside. Applicants will have to meet the eligibility criteria. There are also some dwellings which are exempt from the scheme, such as sheltered dwellings and some single-storey or ground-floor accommodation (other than flats) with one or two bedrooms.

Ending a Secure Tenancy Depending on the type of social tenancy involved, different procedures exist to enable the landlord to gain possession of the property. In all cases, however, the due process of the law must be followed. As regards secure tenancies, except where the tenancy has been abandoned, a social landlord can gain possession only by obtaining a court order based on one of the statutory grounds for possession contained in Schedule 3 to the 1983 Order, as amended. Possession action should only be taken as a last resort when other options have been exhausted. There are currently 13 statutory grounds for possession: — Ground 1: the non-payment of rent or the breach of another obligation. In January 2014, the Northern Ireland Courts and Tribunals Service released a new ‘Pre-Action Protocol for Ejectment Proceedings Based on Non-Payment of Rent in the Social Housing Sector’. Like the protocol for mortgage arrears (see page 563 above), it sets out the steps which a county court will expect the parties to take before initiating possession action, and right up to the date of the hearing. The protocol reiterates that: ‘Eviction should always be viewed as a last resort and should only be used when all other avenues have been exhausted’. — Ground 2: causing or being likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality of the property, or having been convicted of an offence involving using the house, or allowing it to be used, for immoral or illegal purposes, or of an indictable offence committed in, or in the locality of, the house. — Ground 2A: where a couple are living together and one or both is the tenant and one partner has left because of violence or threats of violence by the other and the court is satisfied that the partner who has left is unlikely to return while the other continues to occupy the dwelling-house. — Ground 3: allowing the condition of the property to deteriorate or failing to remove a lodger responsible for such deterioration.

Housing Rights

573

— Ground 4: allowing the condition of any relevant furniture to deteriorate or failing to remove a lodger responsible for such deterioration. — Ground 5: inducing the landlord to grant the tenancy by knowingly or recklessly making a false statement. — Ground 5A: where a secure tenant has paid a fee in respect of an assignment of a tenancy. — Ground 6: where a tenant fails to return to his or her original property after having been required to move out so that works can be carried out. — Ground 7: where the landlord needs to do demolition or reconstruction work, within a reasonable time, and cannot do so without obtaining possession. — Ground 8: where a dwelling which was designed for a disabled person is now occupied by someone who is not disabled and the dwelling is required again for a disabled person. — Ground 9: where an RHA dwelling is usually let to a person who finds it difficult to have his or her housing needs met, for example, through having special needs, and the current occupant is not such a person and the dwelling is required again for such a person (this ground applies only to RHAs). — Ground 10: where the accommodation is for a person with special needs and the current occupant does not have those needs and the dwelling is required again for a person with special needs. — Ground 11: where there is under-occupation of a house of which the tenancy was obtained through ‘statutory succession’ by a member of the previous tenant’s family, other than the spouse. In Grounds 1 to 6 the court must be satisfied that an order for possession is reasonable. In Ground 7 there must be alternative accommodation for the tenant to occupy. In Grounds 8 to 11 both of these conditions must be met. In all of the above cases the tenant can challenge the possession action and ask a county court judge to look at the circumstances of the case in determining whether the possession action is reasonable.

Ending an Introductory Tenancy In contrast to the process required for ending a secure tenancy, a social landlord may bring an introductory tenancy to an end by obtaining an order for possession without basing it on any statutory grounds. This may occur at any time during the 12-month trial period of the tenancy. However, article 10(3) of the 2003 Order requires that the social landlord must state in the notice of proceedings for possession (or ‘Notice to Terminate’), the reasons for seeking an order. Guidance states that the reasons given should relate to behaviour which would, if the tenant were a secure tenant, fall within Grounds 1, 2 or 3 of the 1983 Order (see above). Possession action should be considered only as a last resort. In accordance with article 10 of the 2003 Order, a social landlord can technically be granted a possession order against an introductory tenant provided the

574

Sharon Geary

landlord has complied with the correct legal requirements. Unlike with secure tenancies, under the legislation there is no opportunity for a court to consider the reasonableness of the possession action in the case of an introductory tenancy. However, the UK Supreme Court has ruled that, in cases where an occupier of property cannot put forward a defence against a possession order being made, he or she must have the opportunity for the proportionality of the possession action to be assessed, as it amounts to interference with the person’s home under Article 8 of the European Convention on Human Rights (Manchester City Council v Pinnock, 2010; London Borough of Hounslow v Powell, 2011). The occupant must raise an Article 8 defence in order for it to be considered by the court. In looking at proportionality the court must weigh up the legitimate claim of the social landlord to gain possession of the property against the personal circumstances of the client.

Rent A tenancy agreement obliges the person whose name appears on the tenancy agreement to pay the agreed weekly or monthly rent when due. Where there is more than one tenant each tenant will be jointly and severally liable for payment of the rent. Failure to pay rent is a breach of the tenancy agreement which can lead to possession action being taken. If a tenant is unable to pay the rent because his or her income is insufficient, advice should be sought immediately from Housing Rights Service, a Citizens’ Advice Bureau or another independent advice centre. The Housing Executive calculates the rent for each property by awarding points to a property based on its size, age and facilities. Each point has a monetary value. The DSD sets the level of rates to be payable each year. Generally, the rent and rates will increase every year. In the case of RHAs, each Association will have its own policy in relation to setting rents. However, some tenancies which have existed from before 16 September 1992 still have their rent levels protected under the rent calculation system which applied at that time.

Arrears of Rent Each RHA will have its own policy on rent arrears, although it must always use the due process of the law when seeking to recover them. Tenants should therefore check with the Association in question. The Housing Executive has a proactive policy on the management and recovery of rent arrears. The action it takes will depend on the type of arrears, the level of debt and whether the tenant is in receipt of social security benefits. If a voluntary agreement is unobtainable or unworkable, the Housing Executive will examine the compulsory options for recovery, that is, deductions from benefits, ‘clawback’ from payments the tenant is due to receive (such as redecoration allowance, home loss and disturbance payments, or compensation payments), or court action.

Housing Rights

575

Under the Social Security Claims and Payments Regulations (NI) 1987, the Housing Executive can request direct deductions from a social security benefit if the tenant owes at least six weeks’ rent or if there are less than six weeks’ arrears but the Social Security Agency’s adjudication officer decides that it is in the interest of the tenant and his or her household to make a deduction. Deductions can be made from income support, income-based jobseeker’s allowance, contributionbased jobseeker’s allowance, state retirement pension, pension credit, widows pension, incapacity benefit, severe disablement allowance, widowed parent’s allowance, or employment support allowance (income-based). When considering what action to take, a social landlord must be aware of complying with the ‘Pre-Action Protocol for Ejectment Proceedings Based on NonPayment of Rent in the Social Housing Sector’ (see page 572).

Repairs and Improvements Schedule 4 to the ‘General Conditions of Tenancy’ details the tenant’s and the Housing Executive’s repair obligations with regard to external repairs, internal decoration, electrical repairs, repairs to heating and cooking appliances, plumbing, structural and other repairs. In certain circumstances, the Housing Executive’s district manager may use his or her discretion to waive the tenant’s responsibility to repair. This may occur where the tenant is old or disabled and has no non-dependent relatives living with them, or the tenant is old and has a disabled person living with them. In considering whether or not to exercise the discretion, a district manager must consider the financial burden which will fall on the tenant and the financial status of all persons normally living in the dwelling. A Housing Executive tenant should report any repairs to the local district office by telephoning or calling in. The tenant can also report a repair online through the Housing Executive’s website (www.nihe.gov.uk). A tenant should receive an acknowledgement within three days of reporting the repair and this will indicate how the repair has been classified, that is, as an emergency, urgent or routine repair. If the Housing Executive fails to carry out an emergency or urgent repair within the specified time limit, that is, 24 hours for emergency repairs and four working days for urgent repairs, a tenant may be entitled to compensation under the Right to Repair Scheme. A tenant also has the option of using the Housing Executive’s Self Help Scheme, whereby the tenant can carry out certain works, with the written permission of the Housing Executive, and then claim back the money for the repair. In the case of tenancies with RHAs, the repair obligations of the tenant and the landlord should be set out in the tenancy agreement. According to the ‘Tenant’s Guarantee’, issued under the Housing (NI) Order 1992, RHAs must provide all tenants, at the commencement of their tenancy, with information outlining, amongst other things, the responsibility for repairs, the methods for reporting repairs, how long it should take for a repair to be carried out, and what to do if an

576

Sharon Geary

RHA fails to meet its repairing obligations. Under the voluntary Right to Repair Scheme for RHAs, a tenant may be entitled to compensation if the RHA fails to meet its published response target for repairs.

Public Health Repairs All tenants, irrespective of the terms of their tenancy agreement, can take advantage of the Public Health (Ireland) Act 1878, which makes district councils responsible for ensuring that a statutory nuisance is remedied where: — premises are in such a state as to be a nuisance or prejudicial to health; — any pool, ditch, gutter, watercourse or drain is in such a state as to be a nuisance or prejudicial to health; — any accumulation or deposit is a nuisance or prejudicial to health; — any animal is so kept as to be a nuisance or prejudicial to health; or — any house or part of a house is so overcrowded as to be dangerous or prejudicial to the health of residents, whether or not members of the same family. Where a tenant wishes to pursue a complaint of this nature he or she should do so through the Environmental Health Department of his or her local district council.

Improvements Under article 34 of the Housing (NI) Order 1983, as amended, all secure tenants have the right to carry out certain improvements, providing that they have the written consent of their landlord. Housing Executive tenants have a right under article 35 of the 1983 Order to compensation for improvements at the end of their tenancy. RHA tenants do not have a statutory right to compensation but may be entitled to compensation under the ‘Model Scheme for a Right to Compensation’, which was introduced in 2001 by the DSD. Each RHA operates its own scheme based on the DSD’s model. Compensation is generally available only to secure tenants where the improvement has materially added to the property and the RHA has given written consent.

Redevelopment Under the Housing (NI) Order 1981 the Housing Executive has statutory powers to propose redevelopment areas, the purpose of which is to improve the living conditions of people residing in unfit dwellings. The Executive will identify houses which are unfit, dangerous or injurious to the health of occupants in the area and provide plans for redevelopment. When a redevelopment scheme is submitted to the DSD it is accompanied by an application for a vesting order to acquire all property in the area. An official of the local Environmental Health

Housing Rights

577

Department will then carry out a survey of the area to determine if the area needs to be redeveloped. Under article 47 of the Housing (NI) Order 1981 the Housing Executive can declare a redevelopment area if the survey shows that at least one-third of the houses in the area are either unfit for human habitation (see page 585) or, by reason of their bad arrangement, or the narrowness or bad arrangement of the streets, dangerous or injurious to the health of the inhabitants of the area, provided (in both cases) that the most satisfactory course of action is to redevelop the area as a whole. The Housing Executive can also apply to vest property in an area on behalf of an RHA. If there are any objections to a proposed redevelopment the DSD must hold a public inquiry to examine the objections, unless they are considered to be frivolous or vexatious or are withdrawn. For more information about public inquiries see Chapter 26.

Compensation There are several types of compensation available to those who lose their homes as a result of redevelopment, including: — Home loss payment: This is available to owner-occupiers as well as to tenants; to be eligible owner-occupiers must have been in legal ownership of the property at the date of vesting and tenants must have occupied the property as their principal home for at least one year prior to being displaced. — Disturbance payment: This is available to owner-occupiers and tenants who were in legal possession of their home at the time when the notice of application for a vesting order was made; the Housing Executive will make the payment only after the person has been permanently displaced. — Market value of the property: When the Housing Executive vests a property or purchases a property in advance of vesting, owner-occupiers will be offered the market value of their home; the Housing Executive will offer the owner the price which the district valuer considers to be the value of the owner’s interest in the property; if agreement cannot be reached about the value, the client has the right to refer the matter to the Lands Tribunal; the use of the current market value can cause serious financial difficulties for owner occupiers whose homes are in negative equity. — Market value of the interest: This compensation is paid only to landlords and is intended to compensate them for the loss of rental income.

The Duty to Re-house Following Redevelopment Legal occupiers in a redevelopment area are entitled to be re-housed in existing Housing Executive or RHA property, or in one of the new houses in the

578

Sharon Geary

redevelopment area. Applicants for re-housing are given points according to their housing need and, in addition, awarded ‘management transfer’ status, that is, there is discretion to re-house without reference to their points level. In exceptional circumstances, dwellings can be purchased for families in redevelopment areas where suitable accommodation is not available within the existing housing stock. Each household will be entitled to three reasonable offers of accommodation. Where all three offers are refused the Housing Executive may initiate legal action for possession where it is considered that the occupant’s refusal to move is jeopardising the re-housing of other households in the area. Where legal action has commenced and a decree for possession granted, the Housing Executive will make one further reasonable offer to prevent the family becoming homeless. Having ‘vested’ an area, the Housing Executive or RHA becomes responsible for repairs and maintenance of the properties, although major repairs to houses in proposed redevelopment areas will not be undertaken. Minor repairs will be carried out depending on how soon redevelopment is due to take place.

Complaints Housing Executive tenants who are dissatisfied with the work or decision-making of the Housing Executive can make a formal complaint through its internal complaints procedure. The tenant should first contact the area manager, who should respond within 15 working days. If the tenant is still dissatisfied he or she can contact the Chief Executive, who should also respond within 15 working days. RHAs must have policies and procedures in place to deal with complaints. These should be readily accessible and clearly illustrate who can complain. The DSD has produced a Model Complaint Form to ensure best practice (see www.dsdni. gov.uk/hagtm-complaint-form.pdf ). If the RHA does not use this form the DSD recommends that they should still ensure that all elements included in the model are used in the RHS’s own procedure. If a tenant is unhappy with the outcome of the complaints procedure he or she may ask the Commissioner for Complaints (ie the Ombudsman) to investigate the complaint (see Chapter 2).

Private Rented Housing Privately rented tenancies are those for which the landlord is not the Housing Executive or an RHA. The number of private rented dwellings has more than doubled in the last 10 years (from 44,000 in 2001–02 to 114,000 in 2011–12). With long waiting lists for social housing and many people being unable to afford to purchase a home, the private rented sector is becoming the main housing option for many people.

Housing Rights

579

Since 2007, with the implementation of the Private Tenancies (NI) Order 2006, there have been two types of private tenancies in Northern Ireland: — Rent-controlled and non-rent-controlled tenancies: Any new tenancies which have been created on or after 1 April 2007 fall within this category. Most will be subject to a market rent (non-rent-controlled), whilst others will have their rent controlled depending on the fitness of the property (rentcontrolled). — Protected and statutory tenancies: The term ‘protected’ is the collective term for what used to be known as restricted, regulated and protected shorthold tenancies, which were created under the Rent (NI) Order 1978 (1978 Order). From 1 April 2007 no new protected tenancies can be created. However, tenancies of that type which were already in existence prior to 1 April 2007 retain their protection for as long as the tenant or their successor remains in occupation in the dwelling. A statutory tenancy is a protected tenancy where the original tenancy agreement has expired or the original tenant has died and the tenant has been transferred to the tenant’s successor. In this chapter the term ‘protected’ will be used to cover both of these tenancies.

Landlord Registration Since 25 February 2014 all private landlords have been required to register with the Landlord Registration Scheme (under the Housing (Amendment) Act (NI) 2011). Under the scheme landlords must submit accurate information about themselves and their rental properties. It is hoped that the Landlord Registration Scheme will: — promote good practice in the private rented sector; — provide essential information for local councils in carrying out their compliance and enforcement work; — ensure the provision of appropriate advice and assistance to those living and working in the sector; — improve tenants’ confidence in their landlords; — increase landlord accountability; and — provide a better understanding of the sector.

Private Tenants’ Rights All private tenants have certain basic rights which a tenancy agreement cannot override. Any attempt to do so will be unenforceable and may even be a criminal offence. The basic rights for all private tenants are as follows.

580

Sharon Geary

The Right to a Rent Book All private tenants are entitled to a rent book, regardless of when the tenancy began. For tenancies which began before 1 April 2007 a right to a rent book exists under article 38 of the 1978 Order and the Rent Book Regulations (NI) 2004. For tenancies which commenced on or after 1 April 2007, article 5 of the Private Tenancies (NI) Order 2006 states that a tenant should be provided with a rent book, free of charge, within 28 days of the commencement of the tenancy. A rent book is legally required even where the rent is paid by electronic means, such as by a standing order. Rent book regulations are enforced by local district councils.

The Right to Proper Notice to Quit Under the Rent Book Regulations (NI) 2004 and the Tenancy Terms Regulations (NI) 2007 a landlord is required to give a tenant at least 28 days’ written notice to quit. Changes to the length of notice to quit were introduced in 2011, following the commencement of section 3 of the Housing (Amendment) Act (NI) 2011. This gives longer notice periods to tenants depending on how long they have lived in the tenancy. Where a tenant has lived in a property for between five and 10 years, the required notice is eight weeks. Where a tenant has lived in a property for more than 10 years the notice is 12 weeks. Once the appropriate notice to quit expires, the landlord must obtain an order for possession in order to evict a tenant lawfully. When it comes to a fixed term tenancy, for example, for one year, a notice to quit is not technically required, although it is usually good practice to serve a notice. A fixed-term tenancy automatically ceases on the end date specified in the tenancy agreement. Where a fixed-term tenant remains in the property against the wishes of the landlord, the landlord will have to follow due process and obtain a court order to evict the tenant. Where, however, the fixed-term tenant remains in the property with the consent of the landlord, he or she will become a ‘periodic’ tenant. A periodic tenancy runs on a month-to-month basis and either party can give notice to quit at any time. If, however, the periodic tenancy runs for a significant period of time, such as five years, then the notice to quit provided by the landlord needs to be of a longer period (see above).

Freedom from Harassment and Illegal Eviction Harassment includes any act performed by a person (being the landlord or someone working on the landlord’s behalf) which is intended to prevent a tenant from exercising any of his or her rights in respect of the tenancy. Article 60 of the Private Tenancies (NI) Order 2006 widens the definition of harassment so that

Housing Rights

581

it includes acts carried out by the landlord or agent which are likely to interfere with the peace and comfort of the tenant, or where the landlord or agent persistently withdraws or withholds services which are reasonably required for the occupation of the dwelling, and (in either case) the landlord or agent knows, or has reasonable cause to believe, that the conduct is likely to cause the tenant to give up occupation of the whole or part of the premises or to refrain from exercising any rights or pursuing any remedy in respect of the whole or part of the premises. Where a person is guilty of committing harassment he or she may be prosecuted by the local district council and fined up to £5,000. In addition, a tenant is entitled to initiate civil proceedings against a landlord for damages. An illegal eviction occurs where a tenant is not given the legally required amount of written notice to quit or where the landlord evicts a tenant without first obtaining a possession order.

The Right to Due Process of Law In order to lawfully evict a tenant, a landlord must obtain a possession order and have it enforced through the Enforcement of Judgments Office (see Chapter 2). This applies even where a tenant refuses to leave the dwelling after the term of the tenancy agreement has expired or after a valid written notice to quit has been issued. In this instance the tenant will most probably be liable for any court costs incurred, as the tenant will not have had a legal right to remain in the property beyond the notice to quit or expiry of the tenancy term.

Right to Claim Housing Benefit Housing benefit is a social security benefit aimed at helping people on a low income with their housing costs. In Northern Ireland, housing benefit is administered by the Housing Executive for private tenants. All private tenants have a right to claim housing benefit, but their entitlement will depend on their meeting the eligibility criteria. Under the Tenancy Terms Regulations (NI) 2007 all new tenants must be informed of this right in their tenancy statement.

The Right to a Statement of Tenancy Terms Under article 4 of the Private Tenancies (NI) Order 2006 a tenant must receive a written tenancy statement within 28 days of the tenancy commencing. This must be provided free of charge and is in addition to a tenancy agreement. It must also be provided where a tenancy has been verbally agreed. (This right will disappear when section 1 of the Housing (Amendment) Act (NI) 2011 comes into effect.)

582

Sharon Geary

The Right to Default Repairs Where a tenancy has commenced on or after 1 April 2007, articles 7 to 12 of the 2006 Order states that certain default repairing obligations will apply where there is either no tenancy agreement or the tenancy agreement does not adequately set out the responsibility for repairs.

The Right to a Default Tenancy Term Where a new tenancy has begun but there has been no agreement as to the length of the tenancy, article 13 of the 2006 Order states that a default tenancy period of six months will apply. Thereafter, the tenancy will become a periodic month-to-month tenancy unless a new tenancy agreement with a fixed term is entered into.

Additional Rights for Protected Tenants In addition to the basic rights afforded to all private tenants, protected tenants have some additional rights.

The Right to Succession In accordance with the 1978 Order a spouse, civil partner or family member can succeed to a protected tenancy when the tenant dies. The successor must have been living with the tenant at the time of their death and for a period of at least six months immediately prior to their death. Article 61 of the Private Tenancies (NI) Order 2006 amended the 1978 Order to reduce the right of succession for protected tenants from two successions to one.

The Right to Repairs Where a protected tenancy was ‘regulated’ under the 1978 Order and there is either no agreement in respect of repair obligations or the agreement is inadequate in this respect, articles 7–12 of the Private Tenancies (NI) Order 2006 set out default repairing obligations.

The Right to Security of Tenure Under the 1978 Order a protected tenant has security of tenure, which means that he or she can be evicted from the dwelling only after a possession order has

Housing Rights

583

been granted on one of the statutory grounds included in the Order. There are 10 discretionary grounds on which a court may grant possession: — where there has been non-payment of rent or a breach of the tenancy agreement; — where those residing in the property have caused a nuisance or have used it for immoral purposes; — where damage has been caused to the property; — where damage has been caused to furniture provided; — where the tenant has given notice to quit and the landlord has arranged another agreement for which vacant possession is required; — where the tenant has sub-let the property; — where the tenant held the tenancy as an employee of the landlord and the landlord now requires the property for a new employee; — where the landlord needs possession of the property in order to live in it; — where the tenant has sub-let part of the property at an excessive rent; and — where the property is on agricultural land which the landlord wishes to sell. The 1978 Order also sets out eight mandatory grounds on which a court must grant an order for possession to the landlord: — where the landlord originally occupied the property and, prior to the tenancy, notified the tenant that he or she might in future wish to live there again; — where, prior to the tenancy, the landlord notified the tenant that he or she intended to seek possession of the property on retiring from employment; — where the property was originally intended for occupation by a minister of religion or missionary and it is now required for this purpose; — where the property was originally intended for occupation by an agricultural worker employed by the landlord; — where there has been an agricultural letting in certain circumstances and two farms are to be amalgamated; — where the landlord wants to recover possession of an agricultural letting in certain circumstances when the tenant is not, and has never been, an employee of the landlord; — where the term of a protected shorthold tenancy has expired and the landlord has served a valid notice to quit; and — where the landlord was a member of the armed forces at the time the property was let and, prior to the commencement of the tenancy, notified the tenant that he or she might in future seek possession of the property in order to live there.

Tenancy Agreements A tenancy agreement (ie a lease) is a legal contract between a landlord and tenant which binds both parties. Prospective tenants should ensure that they agree to the

584

Sharon Geary

terms of the agreement before signing it and should look out for key terms such as the amount of rent and when it is payable, the length of the tenancy, the repairing obligations, the amount and purpose of any deposit, the landlord’s right to enter premises and whether there are any restrictions on the use of the property, such as keeping pets or having lodgers.

Implied Terms In the absence of a written tenancy agreement, or in the case of an inadequate one which fails to set out the tenancy terms sufficiently, the law allows certain terms to be implied. In this instance sections 41 and 42 of the Landlord and Tenant Law Amendment Act (Ireland) 1860 (known as ‘Deasy’s Act’) assume that the landlord will ensure that the tenant will have ‘quiet and peaceful enjoyment’ of the premises, that, if furnished, the accommodation is fit for human habitation, that the common parts of the premises will be kept in repair, that any premises let in the course of their construction will be built with proper materials in a workmanlike manner, and that any charges for services will be fair and reasonable. Likewise, it is assumed, unless the tenancy agreement states otherwise, that the tenant will pay rent and rates, keep the premises in good condition and repair and give up possession of the premises at the end of the lease.

Unfair Terms The Unfair Terms in Consumer Contracts Regulations 1999 apply to tenancy agreements and aim to ensure that the terms contained in any contract will be fair to the tenant. Any terms considered to be unfair will be unenforceable if they are detrimental to the tenant. Terms also have to be written in plain and intelligible language. Agreements which are deemed to be unfair will not be binding. For advice on unfair terms tenants should contact the Trading Standards Consumerline on 0300 123 6262 (http://www.consumerline.org/) or seek legal advice from a solicitor.

Rents Non-rent-controlled Tenancies From 1 April 2007 there are two situations in which a landlord can charge whatever level of rent he or she wishes: — where a tenancy has commenced on or after 1 April 2007 and the property is ‘prescribed’; and

Housing Rights

585

— where a tenancy has commenced on or after 1 April 2007 and the property is not ‘prescribed’ but it has passed a fitness inspection and the district council has issued a ‘certificate of fitness’.

Prescribed Tenancies Prescribed tenancies are those which are assumed to be fit for human habitation and, consequently, do not have a restriction placed on their rent levels. They include: — a dwelling-house which was constructed after 1 January 1945 and before 6 November 1956; — a dwelling-house in respect of which a renovation grant has been paid (it will be prescribed for 10 years from the date the grant was paid); — a dwelling-house in respect of which a ‘house in multiple occupation’ (HMO) grant has been paid (it will be prescribed for 10 years from the date the grant was paid); — a dwelling-house registered as an HMO; and — a dwelling-house which is, or was, formerly let under a protected or statutory tenancy (see page 579) and in respect of which a regulated rent certificate was issued (again it will be prescribed for 10 years from the date of the certificate).

Rent-controlled Tenancies The Private Tenancies (NI) Order 2006 created a new form of rent control for some tenancies. It applies where a tenancy: — commenced on or after 1 April 2007; — the dwelling was constructed before 6 November 1956 or is part of a converted building that was constructed before that date; — it is not a prescribed dwelling; and — it does not have a certificate of fitness in operation. In these circumstances the landlord must apply to the local district council for a fitness inspection to be carried out to determine whether the dwelling is fit for human habitation. Failure to do so could lead to prosecution by the local district council with a potential fine of £2,500. The district council will determine the fitness of a property by assessing it against the fitness standard as set out in article 46 of the Housing (NI) Order 1981, as amended. This means that the property must: — — — —

be structurally stable; be free from serious disrepair; be free from dampness prejudicial to the health of the occupants; have adequate provision for lighting, heating and ventilation;

586

Sharon Geary

— have an adequate piped supply of wholesome water; — provide satisfactory facilities for the preparation and cooking of food, including a sink with hot water; — have a suitably located toilet for the exclusive use of the occupants; — have a suitably located bath or shower and wash-hand basin for exclusive use by the occupants, each with a satisfactory supply of hot and cold water; and — have an effective system for the draining of foul, waste and surface water. Depending on the outcome of the fitness inspection, either a certificate of fitness or a notice of refusal will be issued. The Rent Officer will then determine an appropriate rent which will be entered on to a Rent Register. A rent determination can be challenged by appealing to the Rent Assessment Committee.

Protected Tenancies Protected tenancies were created under the Rent Order. Following the implementation of the Private Tenancies (NI) Order 2006, on 1 April 2007, no new protected tenancies can be created. The level of rent for a protected tenancy depends on the type of protected tenancy, which may be: — a restricted tenancy: the rent for this is set at the amount which was payable immediately prior to 1 October 1978, which is around £1 per week, excluding rates; or — a regulated tenancy or shorthold tenancy: the rent for this is set at the amount which was registered with the Housing Executive prior to 31 March 2007.

Rent Deposits Deposits for accommodation are very common in the private rented sector. They are generally used as security against damage, theft or rent arrears. As regards deposits paid prior to 1 April 2013, it is the responsibility of the landlord to return the tenant’s deposit at the end of the tenancy. Where a landlord fails to do this the only recourse for the tenant is to take an action in the small claims court (see Chapter 2). The tenant would need to prove to the district judge that the deposit has been wrongfully withheld. As regards deposits paid on or after 1 April 2013, a new tenancy deposit scheme was introduced in accordance with the Tenancy Deposit Schemes Regulations (NI) 2012. The scheme is intended to safeguard tenancy deposits and provides an independent dispute resolution service where there is disagreement about the withholding of some or all of a deposit. Landlords and agents who fail to protect their tenant’s deposit within 14 days of receipt of the monies will be committing an offence and will be subject to possible prosecution and financial penalties.

Housing Rights

587

Rent in Advance A landlord or agent will often request the first month’s rent to be paid at the start of the tenancy, generally in addition to a deposit. In many cases the amounts of money involved are substantial and the housing benefit system makes no provision for claiming either deposits or rent in advance. However, it may be possible for a prospective tenant to apply to the social fund (see Chapter 25) for either a budgeting loan or a crisis loan to help with the cost of rent in advance. Alternatively, it may be possible to persuade the landlord to wait until the claim for housing benefit is processed, as this will be backdated to the date the tenancy commenced, provided the tenant claims immediately. It may also be possible to receive some help from a number of rent and deposit schemes available in Northern Ireland, including those run by Smartmove and Simon Community.

Fees The Commission on Disposals of Land (NI) Order 1986 stipulates that, where a tenancy agreement requires a tenant to pay ‘commission’ to an agent acting for the landlord, such a clause will be void and unenforceable. Commission can include fees, charges, disbursements, expenses or remuneration. The Order applies only to agents, so any payments due to landlords are not covered, whether they are ‘letting fees’ or not. Any fees payable by a landlord to an agent for services rendered should not be passed on to the tenant. One such example is ‘key money’, which is payment in return for providing a key to the property being let. Such a practice is illegal. From 1 November 2013, letting fees must be disclosed when advertising rental properties. The Advertising Standards Authority has the power to enforce this new requirement across the whole of the UK.

Guarantors Some landlords or agents may request prospective tenants to provide a guarantor in addition to, or instead of, a deposit. A guarantor is someone who guarantees to make payments should the tenant fail to do so. Such payments normally include rent, but could also cover damage to or loss of items provided by the landlord. Failure by the guarantor to honour their guarantee could result in them being sued in court.

Repairs Most repairing obligations will depend on the type of tenancy. However, all tenants have the right to rely on the Public Health (Ireland) Act 1878 if the repair

588

Sharon Geary

issue is a statutory nuisance. District councils have a responsibility under this legislation to ensure that a statutory nuisance is remedied. They can issue a ‘public health notice’ in relation to: — any premises which are in such a state as to be a nuisance or prejudicial to health; — any pool, ditch, gutter, watercourse or drain in such a state as to be a nuisance or prejudicial to health; — any accumulation or deposit which is a nuisance or prejudicial to health; or — any animal so kept as to be a nuisance or prejudicial to health.

Notice of Unfitness Article 18 of the Private Tenancies (NI) Order 2006 provides local district councils with new powers of enforcement in respect of private tenancies which are not fit for human habitation. In determining whether a dwelling is fit for human habitation the district council will use the fitness standard as set out in article 46 of the Housing (NI) Order 1981, as amended by the Housing (NI) Order 1992 (see page 585). Where a district council is satisfied that a dwelling is unfit for human habitation it can serve a notice of unfitness on the owner or any person who receives or is entitled to receive the rent, such as a letting agent. The notice of unfitness will specify the works which need to be carried out to ensure that the property is made fit for human habitation and will also provide a timescale in which the works must be completed.

Notice of Disrepair The district council can issue a notice of disrepair in accordance with article 19 of the Private Tenancies (NI) Order 2006 concerning a dwelling which, although not unfit for human habitation, is in need of substantial repairs in order to bring it up to a reasonable standard. The notice of disrepair will specify what works are needed to be carried out in order to bring the dwelling-house up to a reasonable standard and will give a period for the works to be completed.

Defective Premises The Defective Premises (Landlord’s Liability) Act (NI) 2001 extends the duty of care on landlords of residential premises to prevent defects from causing personal injury or damage to possessions. It widens the duty of care to all persons who might reasonably be expected to be affected by defects in the state of a landlord’s premises. Furthermore, the duty of care applies not only if the landlord knows of the defect but also if he or she ought to have known of it in all the circumstances.

Housing Rights

589

Default Repairs Where a tenancy agreement does not specify the repair obligations of the landlord and tenant or there is no tenancy agreement, the Private Tenancies (NI) Order 2006 sets out a number of default obligations. For example, the landlord is required to keep in good repair the structure and exterior of the dwelling (including gutters, drains, external pipes and external paintwork) and to keep in good repair and proper working order certain items in the interior such as: — installations for the supply and use of water, gas and electricity and for sanitation including basins, sinks, baths and toilets; — installations for heating and hot water; — appliances for making use of the water, gas or electricity which the landlord has provided under the terms of the tenancy; and — any fixtures, fittings and furniture which the landlord has provided under the terms of the tenancy. The tenant is obliged to: — take proper care of the dwelling as a good tenant; — make good any damage to the dwelling caused by the behaviour or negligence of the tenant or members of the tenant’s household; — keep the interior of the dwelling-house in reasonable decorative order; and — obtain permission from the landlord before carrying out alterations to the dwelling.

Home Improvement Grants The 2003 Order established a new private sector Home Improvements Scheme for owner-occupiers, private tenants and landlords, which is administered by the Housing Executive. At present, due to financial constraints being experienced by the Housing Executive, there are restrictions on the grants which are awarded. This means that most of the discretionary grants are being curtailed. However, the mandatory grants are still available (see pages 565–66 above).

Houses in Multiple Occupation (HMOs) Many properties in the private rented sector are classed as HMOs. Articles 75–87 of the Housing (NI) Order 1992 empower the Housing Executive to set and enforce standards for HMOs. They enable the Housing Executive to: — serve an overcrowding notice if there is an excessive number of people living in the house;

590

Sharon Geary

— ensure the dwelling is occupied in accordance with proper standards of management; — issue a notice specifying work which needs to be carried out to comply with the HMO standards and to make the property fit for human habitation; — ensure that there is an adequate means of escape from fire and other adequate fire precautions; — fix occupancy limits and enforce them in order to prevent or remedy overcrowding; and — ensure works are carried out.

HMO Licensing A statutory registration scheme for HMOs has been in force since 1 May 2004. It was introduced under Schedule 3 to 2003 Order, which amends Part IV of the 1992 Order. Initially, the scheme required the registration only of HMOs which were located in specific HMO Action Areas but, following a phased implementation programme, all HMOs should have been registered by 1 April 2013.

Homelessness The 1988 Order is the main piece of legislation relating to homelessness in Northern Ireland. It sets out the definition of homelessness, the tests which are looked at in determining if an applicant is statutorily homeless and the various duties owed by the Housing Executive to homeless persons. According to the Northern Ireland Housing Statistics for 2011–12, published by the DSD, a total of 19,737 households presented to the Housing Executive as homeless. In order to be owed a duty to be given access to social housing and temporary accommodation the applicant has to pass four homelessness ‘tests’. If he or she passes all the tests the applicant will be awarded ‘full duty applicant’ status and will be given 70 points automatically on the ‘common waiting list’ for social housing. The four tests concern homelessness, eligibility, priority need and ‘intentionality’, as explained below.

Homelessness Test A homeless person can be: — actually homeless, when he or she has no accommodation available in the UK or elsewhere;

Housing Rights

591

— ‘deemed’ homeless, when it is not reasonable for a person to continue to occupy their accommodation, for example, because of serious overcrowding, a threat of violence or a danger to health; or — threatened with homelessness, when it is likely that he or she will become homeless within 28 days.

Eligibility Test Article 7A of the 1988 Order, as amended, requires an applicant to be ‘eligible for assistance’. There are two distinct categories of persons who can be considered as ineligible, namely certain persons from abroad (who are ineligible because of their immigration status) and persons guilty of unacceptable behaviour.

Priority Need Test A person can be regarded as being in priority need for a variety of reasons, including: — — — — — —

being pregnant; having dependent children; being vulnerable due, for instance, to old age, mental illness or disability; having become homeless due to an emergency such as a flood or fire; being the victim of, or at risk of, violence; or being between 16 and 21 years of age and at risk of exploitation.

Intentionality Test The final test for homelessness is ‘intentionality’, as set out in article 6 of the 1988 Order, as amended. It examines the reasons why a person is claiming to be homeless and ascertains whether he or she did or failed to do something which has led to them losing their accommodation.

The Duties of the Housing Executive The level of assistance owed to a person will depend on the extent to which the applicant passes the four tests: — not homeless: the Housing Executive will provide the applicant with a written decision which must include reasons for that decision; — ineligible for assistance on the basis of being a person from abroad or a person guilty of unacceptable behaviour: the applicant is entitled only to advice

592

— —

—

—

—

Sharon Geary and assistance; however, if there is reason to believe that the applicant has a priority need he or she will be entitled to temporary accommodation for a period that will allow him or her to find alternative accommodation; homeless but not in priority need: the applicant is entitled to a written decision with reasons and must also be given specific advice; homeless and in priority need: the Housing Executive should offer the applicant temporary accommodation until its inquiries into eligibility and intentionality have been completed; homeless, in priority need and eligible for assistance: the applicant is then entitled to temporary accommodation until the Housing Executive has completed its inquiries into intentionality; intentionally homeless, eligible for assistance and in priority need: the applicant should receive a written decision with reasons but should also be provided with temporary accommodation for a reasonable time to allow him or her to find alternative accommodation; specific advice should also be provided; or unintentionally homeless, eligible for assistance and in priority need: the applicant will be awarded ‘full duty applicant’ status, 70 points under the Housing Selection Scheme (see page 567) and be entitled to temporary accommodation and three reasonable offers of housing.

Challenging a Homelessness Decision Once the Housing Executive has reached a decision on a homelessness application, the applicant should receive notification in writing. This notice should explain, as fully as possible, the reasons for the decision and inform the applicant of the right to request a review by the Housing Executive if the applicant is unhappy with the decision (art 11A of the 1988 Order, as inserted by s 5 of the Housing (Amendment) Act (NI) 2010). Provided the applicant has requested the review in the proper manner, and that the homelessness decision is one of a type which can be reviewed, the Housing Executive must carry out a review. It must be requested within 28 days of the date on which the applicant receives notification of the homelessness decision. Article 11A stipulates that the following types of decision can be reviewed: — decisions on eligibility for assistance; — decisions on the duties owed to the applicant, that is, duties owed under articles 10 and 11 of the 1988 Order to persons who are homeless or threatened with homelessness; duties owed under article 10 include a duty to secure accommodation, to provide temporary accommodation and to provide specific advice and assistance; duties owed under article 11 include a duty to take steps to ensure the applicant keeps their accommodation and to provide specific advice and assistance; and

Housing Rights

593

— decisions on the suitability of accommodation offered under articles 10 and 11; in this context ‘accommodation’ refers to both temporary accommodation pending the outcome of the homelessness assessment and temporary accommodation pending the offer of a tenancy. Where an applicant is unhappy with the outcome of a review he or she may be able to take an appeal to a county court under article 11C of the 1988 Order, as inserted by section 5(1) of the Housing (Amendment) Act (NI) 2010. Applicants do not require permission to bring the case to a county court, but an appeal can be brought only on a point of law arising either from the review decision or from the original homelessness decision or if the Housing Executive has failed to notify the applicant of the review decision within the prescribed time limit (ie eight weeks from the date of the request for a review).

Useful Contacts Department for Social Development Lighthouse Building 1 Cromac Place Gasworks Business Park Ormeau Road Belfast BT7 2JB tel: 028 9082 9000 www.dsdni.gov.uk Housing Rights Service 10–12 High Street, 4th floor Belfast BT1 2BA tel: 028 9024 5640 www.housingrights.org.uk www.housingadviceNI.org an online housing advice website NI Direct www.nidirect.gov.uk Northern Ireland Housing Executive The Housing Centre 2 Adelaide Street Belfast BT2 8GA tel: 03448 920 900 www.nihe.gov.uk

25 Social Security Rights LES ALLAMBY

Introduction This chapter provides an overview of social security benefits to which people in Northern Ireland are entitled. At the time of writing, the social security system is on the threshold of its biggest change for a generation. The Welfare Reform Act 2012 has been passed in Great Britain and many of its provisions have now been introduced. As social security is a devolved matter, a similar Bill was published for Northern Ireland in March 2012 and has been through a process of scrutiny by the Northern Ireland Assembly’s Social Development Committee and an ad hoc Assembly Committee to examine the Bill’s equality and human rights implications. At the time of writing, the Bill has still to come back to the Assembly to be passed, and the UK government is apparently imposing a monthly financial penalty of £5 million for its late enactment from January to March 2014 and a further financial penalty of £87 million for 2014/15. In addition, the two main parties have been negotiating a deal to do some things differently in Northern Ireland, with the Northern Ireland Executive bearing the cost. This will include at least introducing the social rented size-related provisions on housing benefit (the bedroom tax) to new claimants of housing benefit only and a number of other modifications. In Great Britain this was introduced for existing as well as new claimants. The two main parties in the Northern Ireland Executive remain deadlocked over whether to pass the Welfare Reform Bill. At present, the Bill is part of a wider talks initiative. This chapter assumes the Bill will eventually be passed though that remains to be seen at the time of writing. The Act in Great Britain paved the way for: — the introduction of universal credit from October 2013; — the replacement of disability living allowance for people of working age with the personal independence payment from April 2013; — increased conditionality (ie sanctions) for failure to engage in seeking work, training or other opportunities under the Work Programme; — the limitation of entitlement to contributory employment and support allowance to 12 months for people in the work-related activity group;

596

Les Allamby

— the abolition of the discretionary social fund; — the replacement of council tax benefit with a scheme devised by individual local authorities; — the introduction of size-related restrictions to housing benefit in public sector housing; and — the introduction of a cap on the overall level of entitlement to means-tested benefits. The Welfare Reform Act 2012 followed other significant changes to benefits announced in the Chancellor’s emergency budget and Comprehensive Spending Review statement in June and October 2010 respectively. These announced changes to the formula for up-rating benefits, reductions in entitlement to housing benefit and mortgage interest support in means-tested benefits, cuts to tax credits alongside some improvements and reductions to other benefits. They were designed to reduce expenditure on social security by £18 billion. In addition, the process of migrating incapacity benefit claimants to employment support allowance, with everyone undergoing the much tougher work capability assessment, has recently been completed. Further savings to social security expenditure were announced in the Chancellor’s autumn statements in 2012 and 2013. In Northern Ireland the changes announced for Great Britain have been replicated. The assumption in this chapter is that the Act in Great Britain will largely be followed in Northern Ireland. This may of course change if there are further negotiations between the Northern Ireland Executive and the Westminster government. In reality, there will definitely be some differences, as the transfer of parts of the social fund scheme and council tax benefit to local authorities will not be matched here. Instead, a social fund type scheme will be retained in some form within the Department for Social Development and the rate rebate scheme will continue to operate in Northern Ireland. The basis for the assumption is that the concept of parity of provision will continue to apply to social security. Perhaps surprisingly, given the reporting of the debate, there is no legal requirement on Northern Ireland to have the same scheme as in Great Britain. Instead, section 87 of the Northern Ireland Act 1998 requires consultation and coordination and provides that: The Secretary of State [of Work and Pensions] and Northern Ireland minister responsible for social security shall from time to time consult one another with the view to securing that, to the extent agreed between them, the legislation to which this section applies provides single systems of social security, child support and pensions for the United Kingdom.

In effect, arrangements agreed between the Treasury and the devolved administration make it difficult to depart from parity in a fundamental way. There is a considerable financial subsidy from the Treasury in funding Northern Ireland’s social security scheme. As a result, the Treasury holds significant sway in social security arrangements for Northern Ireland.

Social Security Rights

597

In October 2010 the Treasury issued a statement on ‘Funding the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly’. This included the following passage: [Social security] benefits will be funded on the same model as in Great Britain, that is funding will be in line with actual entitlement of claimants. If, in the future, the Northern Ireland Executive changes social security policy to differ from the rest of the United Kingdom, United Kingdom Ministers will need to take a view on whether and how to adjust this funding. Increases in Annually Managed Expenditure which arise from policy decisions taken by the respective devolved administrations will be met from their respective budgets.

As a result, if Northern Ireland wants to spend more on social security, then the additional expenditure will have to come from its own budget. Conversely, any decision to spend less will mean the savings go straight back to the Treasury. Nonetheless, there are significant examples of different social security arrangements in Northern Ireland, including greater powers to made deductions from benefits in order to repay public debts; the rate rebate scheme, which would encompass a rebate for water charges if such charges were introduced; different rules on students and benefits; and the lack of a Work Programme in Northern Ireland. Administrative arrangements also differ, with responsibility for social security administration being shared between the Department for Social Development and the Department of Employment and Learning, unlike in Great Britain, where the Department for Work and Pensions has overall responsibility. Her Majesty’s Revenue and Customs (HMRC) currently has responsibility for tax credits, child benefit and guardian’s allowance throughout the UK. One of the interesting issues to be debated in the passage of Northern Ireland’s Welfare Reform Bill will be whether there is latitude within the concept of parity to introduce welfare reform changes which more effectively mirror Northern Ireland’s circumstances. The current understanding is that there will be some additional differences between the arrangements introduced in Great Britain and Northern Ireland.

Current Arrangements In effect, the benefits system can be divided in two ways. First, there are national insurance and non-national insurance benefits. The former include contributorybased jobseeker’s allowance (JSA) and contributory-based employment and support allowance (ESA), which rely on previous payments of national insurance contributions to establish entitlement. In contrast, income-based jobseeker’s allowance and income-related employment and support allowance do not rely on previous payments of contributions to establish entitlement. The insurance principle which was central to Beveridge’s vision of the welfare state in the 1940s

598

Les Allamby

has been inexorably eroded and the Welfare Reform Act 2012 has continued that process. The second divide in the benefits system is between means-tested and nonmeans tested benefits. Means-tested benefits are social security benefits which include an assessment of the claimant’s and certain family members’ income and savings as part of establishing entitlement. Income support, pension credit, housing benefit, income-based JSA, income-based ESA and tax credits all fall within this category. In contrast, other benefits require no such income and savings test, for example, child benefit, contributory-based ESA, contributory-based JSA, disability living allowance and attendance allowance. The entitlement an individual will have to particular social security benefits will depend on his or her circumstances. Furthermore, a person may be able to claim more than one benefit at a time, for example, a carer may be able to claim both carer’s allowance and income support. Table 1 set outs the possible entitlements depending on personal circumstances.

Those Who are Bereaved There are three main benefits payable to widows and widowers. The first is a bereavement payment in the form of a one-off lump sum payment of £2,000 for people who were under pensionable age when their spouse or civil partner died or whose late spouse or civil partner was not entitled to state retirement pension. The deceased spouse or civil partner must have paid sufficient national insurance contributions in any one tax year before his or her death. The second is a bereavement allowance paid for up to 52 weeks for people who were aged 45 or over but were still under pensionable age when their spouse or civil partner died. There are two contribution conditions which must be satisfied for entitlement to the allowance. The first is that sufficient national insurance contributions must have been paid by the deceased person in any one tax year. The second relates to paying sufficient contributions in a number of tax years depending on the length of the deceased’s working life. The weekly payment is £111.20 (2014–15 rate). It is reduced if the person claiming was under 55 when his or her spouse or civil partner died. The third benefit a is widowed parent’s allowance which is paid to widows, widowers and surviving civil partners who are under pensionable age and have children or who are pregnant. The claimant must have children who are entitled to child benefit and the late spouse or partner must have satisfied the same national insurance contributions that apply to bereavement allowance. The widowed parent’s allowance is also £111.20 per week (2014–15 rate). Widowed parent’s allowance and bereavement allowance cannot be paid at the same time; however, when widowed parent’s allowance ends, for example because a person is no longer entitled to child benefit for a child, then bereavement allowance may be paid if 52

Incapable of work

Disabled

Yes income-related only

Yes

Cold weather payments

No

No

Industrial injuries benefits

Employment and support allowance

No

Attendance allowance

Incapacity benefit

No

Disability living allowance

Yes

Health benefits

No

Statutory paternity pay No

No

Statutory maternity pay

No

No

Guardian’s allowance

Maternity allowance

No

Child benefit

Statutory adoption pay

Yes

No

Yes

Funeral expenses payment

Child tax credit

No

Bereavement allowance

Carer’s allowance

No

Widowed parent’s allowance

Pregnant or responsible for a child

No

Bereavement payment

Means-tested

Benefits or tax credits to which a person may be entitled

Carer

Bereaved

Personal circumstances

Table 1: Entitlements as per personal circumstances

Yes (Continued)

Yes contributory-related only

No

No

No

No

No

No

Yes

Yes

Yes

No

No

No

No

No

Yes

Yes

Yes

Insurance-related

Social Security Rights 599

Yes

Child tax credit

Yes Yes

No

Social fund winter fuel payment

Working tax credit

Yes

Pension credit

In work and on a low income

Yes

Social fund ‘sure start’ maternity grant

Income support

Yes

Funeral expenses payment

Unemployed and not able to seek work

Yes

Cold weather payment

Yes income-based only

Yes

Social fund community care grant, budgeting loans and social fund crisis loans

Jobseeker’s allowance

Yes

Yes

Rate rebate Yes

Yes

Pension credit

Housing benefit

Yes

Income-related employment and support allowance

Rate rebate

Yes

Income-based jobseeker’s allowance

No Yes

Income support

Statutory sick pay

Benefits or tax credits to which a person may be entitled

Unemployed or seeking work

Not enough money to meet certain needs

Tenant

Repaying a mortgage

Personal circumstances

Table 1: (Continued)

Yes

No

No

No

No contributory-based only

No

No

No

No

No

No

No

No

No

No

No

No

No

600 Les Allamby

Social Security Rights

601

weeks has not yet elapsed since the death. Both widowed parent’s allowance and bereavement allowance end if the recipient re-marries or enters into a new civil partnership. The benefits will be suspended if a person cohabits but does not get married or enter into a civil partnership, but can be restored if the relationship subsequently breaks down. A challenge to the failure to pay widow’s benefits to unmarried widows on the grounds that it was contrary to the right to family life under Article 8 of the European Convention on Human Rights (ECHR), read together with the right not to be discriminated against (Article 14), failed on the grounds that bolstering marriage as an institution is within the UK government’s margin of appreciation in developing public policy (Shackell v UK, 1999). The government has consulted on proposals to reform bereavement benefit with a view to introducing new arrangements. These arrangements are unlikely to come into force before 2016.

Those Who are Carers Carer’s allowance is paid to carers who provide regular and substantial care for at least 35 hours per week for a person entitled to the care component of disability living allowance (DLA) at the middle or higher rate. The carer must not be in employment and earning more than £102 per week (2014–15 rate), or in fulltime education. Carer’s allowance is currently £61.35 per week (2014–15 rate). It is taken into account in full for all means-tested benefits, although it also allows a carer’s premium to be taken into account when assessing entitlement to these benefits. Carer’s allowance also overlaps with certain other benefits, including retirement pension; as a result, payment of the carer’s allowance will lead to a reduction in the retirement pension.

Those Pregnant or Responsible for a Child Statutory maternity pay (SMP) is paid to women who are pregnant or have recently given birth. To qualify, the woman must have been employed for a continuous period of 26 weeks ending with the fifteenth week before the expected week of her confinement (the relevant period). In addition, the woman must have average gross weekly earnings during the relevant period above the lower earnings limit for national insurance contributions (£111 per week at the 2014–15 rate). There are specific requirements for notice and information to be given to the employer in order to establish entitlement. SMP is paid for up to 39 weeks. The first six weeks are paid at the rate of 90 per cent of average weekly earnings in the relevant period. The remaining weeks are paid at either £138.18 per week (2014–15 rate) or at the 90 per cent of earnings rate, whichever is the lower.

602

Les Allamby

A person who is not entitled to SMP may qualify for maternity allowance instead. A person must have been employed or self-employed for at least 26 weeks in the 66 weeks immediately before the expected week of confinement. In addition, the person must have average weekly earnings of at least £30 per week (2014– 15 rate). Maternity allowance is paid for 39 weeks at £138.18 per week (2014–15 rate) or 90 per cent of earnings, whichever is the lesser rate. For people with very low incomes a ‘sure start’ maternity grant may be payable (see page 612 below). Statutory paternity pay (SPP) is paid where a person’s partner has given birth. There are rules around having worked for a continuous period before the baby is born and having earned on average at least the weekly lower earnings limit for national insurance contribution conditions (£111 per week at the 2014–15 rate). There are also requirements to give notice and specific information to an employer. SPP is paid for a maximum of two consecutive weeks and leave must be taken within eight weeks of the baby’s birth. The payment is again the lesser of £138.18 (2014–15 rate) or 90 per cent of average weekly earnings. Additional SPP can be claimed where a partner has returned to work. In effect, this allows partners to choose who will look after the child during the maternity pay period. The payment can be made for up to 20 weeks and is also £138.18 per week (2014–15 rate) or 90 per cent of average weekly earnings, whichever is lower. Statutory adoption pay (SAP) is paid when a child is or is about to be placed with a claimant for adoption. Once more there are rules around being in continuous employment for a relevant period, about the level of earnings during the relevant period and about provision of information and notice to an employer. These rules are similar to those which apply to SMP and SPP. SAP is also paid for 39 weeks at £138.18 per week (2014–15 rate) or 90 per cent of average earnings, whichever is the lower. SMP, SPP and SAP are all paid by the employer and should be paid on the same basis as normal wages and salary is paid. There are mechanisms in place for the employer to reclaim most if not all of the sums paid from the government.

Child Benefit and Child Tax Credit A key benefit for parents is child benefit. To qualify, a claimant must be responsible for a child aged up to 16, or aged from 16 to 19 and on a course of full-time non-advanced education or approved training. There are particular rules around 19-year-olds who are still in education. In certain circumstances child benefit is payable for a short period after a young person leaves education. The child must either be living with the claimant or the claimant must be contributing to the costs of the child or young person. There are priority rules for deciding who is entitled to child benefit where a couple separate. Child benefit is currently £20.50 per week for the eldest child and £13.55 per week for other children (2014–15 rate). Since January 2013, where one person has an annual income of £50,000 or

Social Security Rights

603

more, child benefit has been treated as taxable income. Alternatively, a person can elect not to receive child benefit instead of being taxed. Child tax credit (CTC) is also paid to people who are responsible for a child or qualifying young person. It is paid whether or not the person is in work. The child must be aged up to 16, or aged from 16 to 20 and still in full-time non-advanced education or approved training. Where a couple have separated HMRC will apply its own rules to decide which partner should be entitled to receive CTC. A claimant who is on income support, income-based JSA, income-related ESA or pension credit receives the maximum rate of CTC. A person not receiving a means-tested benefit will have a means test applied to his or her circumstances in order to decide how much CTC is payable. An additional disability element is included in the means test where a child receives disability living allowance (DLA) or is registered blind. A further severe disability element is included where a child receives the highest rate of DLA. Guardian’s allowance is paid to a person looking after a child who is, in effect, an orphan. At the 2014–15 rate guardian’s allowance is £16.35 per week for each child.

Those with Disabilities Disability living allowance (DLA) is paid to people who need help with mobility needs, personal care, or both. A person must be under 65 when the first claim is made but if he or she qualifies for DLA, payment can continue beyond the age of 65. DLA is made up of a mobility component (at a higher or lower rate) and a care component (at a higher, middle or lower rate). Depending on his or her circumstances, a person can claim either the mobility component alone, the care component alone, or both components.

Mobility Component To qualify for the mobility component a person must be aged three or over for the higher rate or five or over for the lower rate, but be under 65 and likely to benefit from getting out and about. To quality for either rate, a person must have satisfied the disability condition for three months before the start of the award and be likely to continue to so do for the following six months. An exception is made for the terminally ill. The lower rate is payable if a person is so severely physically or mentally disabled that, although able to walk, he or she needs guidance or supervision from another person most of the time. Routes familiar to an individual are ignored when considering this test. For children under 16, the supervision or guidance required must be substantially more than would be needed for an equivalent

604

Les Allamby

child in normal physical and mental health. The lower rate mobility component is worth £21.55 per week (2014–15 rate). The higher rate is payable if a person has a physical disability to such an extent that he or she is virtually unable to walk out of doors. The test will examine the distance, speed and manner a person can walk without severe discomfort. There is no specific distance that a claimant cannot walk to establish entitlement. In practice, the further a person can walk without severe discomfort the less likely it is that entitlement will be established. Further possible routes of entitlement are that the exertion required to walk would constitute a danger to life or be likely to lead to a serious deterioration in health, that a person is both deaf and blind, or blind or severely visually impaired, or a double amputee or born without feet, or severely mentally impaired and with severe behavioural problems and qualifies for the higher rate care component. For those who are under 16 there is no additional test for the higher mobility component. The higher rate mobility component is worth £56.75 per week (2014–15 rate).

Care Component To qualify for any DLA care component a person must have satisfied the disability condition for at least three months and be likely to continue to do so for the following six months. Again, an exception is made for the terminally ill. There is no lower age limit for the DLA care component except for the lower rate cooking test. There is, however, an additional test for children under 16 years of age, namely that the child has attention or supervision requirements substantially in excess of the normal requirements of a child of the same age. To qualify for the lower rate of the care component a person must be aged at least 16 and be so severely disabled that he or she is unable to prepare a cooked main meal even if the ingredients are readily available. A second option is that a person is so severely disabled that he or she requires help with bodily functions from another person for a significant portion of the day (whether during a single period or a number of periods). Bodily functions can include, for example, walking, eating and going to the toilet. The lower rate care component is worth £21.55 per week (2014–15 rate). The middle rate care component is payable where a person satisfies either the day-time or night-time test. The day-time test is that a person is so severely disabled that he or she requires frequent attention from another person throughout the day in connection with bodily functions or continual supervision throughout the day in order to avoid substantial damage to him or herself or to others. The night-time test is that a person needs prolonged or repeated attention at night in connection with bodily functions or requires another person to be awake at night for a prolonged period or at frequent intervals to watch over him or her. The middle rate care component is worth £54.45 per week (2014–15 rate).

Social Security Rights

605

The higher rate care component is payable where one of the day-time attention or supervision tests and one of the night-time attention or supervision tests are both satisfied. A person who is terminally ill also automatically qualifies for the higher rate care component. The higher rate care component is worth £81.30 per week (2014–15 rate).

Personal Independence Payment DLA for people of working age will be replaced by personal independence payment (PIP) once the Welfare Reform Bill has been passed in Northern Ireland. Draft regulations have been published which give an indication of how the benefit will be assessed. PIP will comprise two components: one for daily living and one for mobility. Each component will have two rates: standard and enhanced. Assessment is by means of acquiring points, scored on the basis of 11 activities which have been designed to act as proxies for the additional costs faced by a disabled person. Nine of these activities will relate to social living and the remaining two will test mobility. The activities can be grouped into five broad themes: accessing food and drink; managing medical conditions and treatment; managing personal hygiene; communication; and getting around. The qualifying time requirements are longer than for DLA, with people needing to have met the conditions of entitlement for a period of three months prior to any award as well as being considered likely to continue to meet them for a further nine months, although being terminally ill will result in an immediate entitlement to the daily living component. The proposed arrangements suggest that needing to use a wheelchair and severe visual impairment will no longer lead to automatic qualification for the higher rate mobility component. On announcing the change in the Chancellor’s emergency budget in 2011, the accompanying Treasury report suggested that the new benefit should lead to a 20 per cent reduction in expenditure. This suggests that the qualifying rules for PIP will be much tougher to satisfy than the current DLA rules of entitlement. An estimate by the Department for Social Development suggests that 25 per cent of claimants will lose entitlement, 32.8 per cent will remain entitled but at a lower rate, 23.3 per cent will remain entitled but at a higher rate, and 18.8 per cent will see no change in entitlement. It will take over three years to reassess existing DLA claimants before allocating them a PIP.

Attendance Allowance People aged 65 or over who need attention or supervision can claim attendance allowance. The routes to entitlement are that either one of the day-time or nighttime supervision or attention tests for DLA are met. This leads to payment of attendance allowance at the lower rate of £54.45 per week (2014–15 rate). Where

606

Les Allamby

both a day-time and a night-time condition for supervision or attention is met, a higher rate of attendance allowance is payable, namely £81.30 per week (2014–15 rate). A terminally ill person automatically qualifies for the higher rate of attendance allowance.

Industrial Injuries Benefits Industrial injuries benefits are paid if a person becomes disabled due to being injured or contracting a disease at work. The conditions of entitlement are that a person must have suffered the injury or contracted the disease at work and, as a result, suffered a loss of faculty and become disabled. The main benefit is industrial injuries disablement benefit, which can be supplemented by constant attendance allowance and, exceptionally, severe disablement allowance. Industrial injuries disablement benefit is worth £166.00 per week (2014–15 rate) if the claimant is assessed as 100 per cent disabled and reduced amounts if the level of disablement is lower. The extent of disablement must be at least 14 per cent to qualify for any financial support.

Those Incapable of Work Employment and support allowance (ESA) is paid to people under pensionable age who have limited capacity for work and who are not entitled to statutory sick pay. There are two types of ESA: contributory-based ESA, which is based on payment of national insurance contributions and is not means-tested, and incomerelated ESA, which is not contributory-based but is means-tested. However, for contributory-based ESA benefit is reduced where a person receives certain personal occupation or other pension payments worth more than £85 per week (2014–15 rate). For contributory-based ESA a person must satisfy the national insurance contribution conditions. First, he or she must have paid sufficient contributions as an employee or self-employed person in one of the last two complete tax years before the relevant benefit year. The relevant benefit year is normally the year in which the period of limited capacity for work started. This condition is relaxed in specific circumstances. The second condition is that the person must have paid sufficient national insurance contributions or received sufficient national insurance credits in each of the last two complete tax years ending before the relevant benefit year. Some young people can receive contributory-based ESA without satisfying the national insurance conditions, although this will no longer be the case for new claims once the Welfare Reform Bill has been passed. For income-related ESA a person must have £16,000 or less in savings, have an income below a set prescribed level, not have a partner working for 24 hours or

Social Security Rights

607

more each week, not be in full-time education unless getting DLA, and satisfy the habitual residence and right to reside tests.

Work Capability Assessments The other main condition of entitlement to ESA is that a person must have limited capacity for work. This is decided through a person undergoing a work capability assessment (WCA). The assessment is based on a series of indicators of ability to perform tasks which lead to the scoring of points. The test covers both physical and mental activities and to satisfy it a person must score at least 15 points. The test is based on filling out a questionnaire and attending a medical examination. The WCA takes place shortly after a claim for ESA is made. In specific circumstances a person can be treated as automatically satisfying the test. This includes where the test has not yet been carried out, where a woman is pregnant or has recently given birth and is not in receipt of certain other benefits, and where a person is undergoing (or has recently undergone) chemotherapy treatment, has recently been in hospital, is recovering from treatment as an inpatient or is terminally ill. In addition, the test determines whether a person has ‘limited capability for work-related activity’. If he or she does, the person will be entitled to a support component. If not, the person will be entitled to a lower work-related activity component and have to take part in work-focused interviews and enter into work-related activities.

Initial, Assessment and Main Phases During the initial stage of the claim a person is treated as being in the assessment phase and is paid a lower amount of benefit. This phase normally lasts 13 weeks. During the assessment phase contributory-based ESA is worth £72.40 per week or £57.35 per week if the claimant is aged under 25 (2014–15 rate). After the assessment phase a person is paid £72.40 a week regardless of age. In addition, the basic allowance can be topped up with either the support component of £35.75 per week or the work-related activity component of £28.75 per week (2014–15 rates). During the assessment phase for income-related ESA a person receives an applicable amount based on a personal allowance of £72.40 per week if single or a lone parent aged over 25, £57.35 if aged 18 to 24, or £113.70 if part of a couple and both partners are aged over 18 (2014–15 rates). Claimants may also satisfy conditions for enhanced disability, severe disability, carer or pensioner premiums and help with mortgage interest payments. The applicable amount will be reduced where a person or his or her partner is receiving other specified income. During the main phase the personal allowance of £72.40 per week is paid regardless of age. In addition to the premiums and housing costs for owner-occupiers,

608

Les Allamby

either the support component or the work-related activity component will be included in the amount allocated to the claimant. In certain circumstances, different periods of limited capacity for work can be linked. Normally, the linking period applies where the periods are not more than 12 weeks apart. This means that a person does not have to go through the assessment phase again. It is possible to work and retain ESA in very specific circumstances.

The Position of Current Claimants Under the Welfare Reform Act 2012 the government has limited entitlement to contributory-based ESA for people in the ‘work-related activity group’ to 12 months. Any time spent on contributory-based ESA before this change is introduced will count towards the 12 months period. There is a similar provision in Northern Ireland’s Welfare Reform Bill. From February 2011 until late 2014 people in Northern Ireland receiving incapacity benefit, severe disablement allowance or income support on grounds of disability were transferred to ESA. This entailed claimants having to undergo the work capability assessment described above. The pilot schemes run by the government suggested that up to 30 per cent of those transferred would fail the test, which is more strict than the arrangements that have applied to incapacity benefit. Anyone who reaches pensionable age before April 2014 was not transferred to ESA.

Housing Costs and Owner-occupiers A claimant on income support, income-based JSA, income-related ESA or pension credit can receive help with housing costs as an owner-occupier as part of the assessment of their entitlement to these benefits. The costs which can be paid include mortgages and other loans for house purchase, loans to meet specific repairs and improvements, and other housing costs such as ground rent, service charges and payments under co-ownership schemes. The level of help with mortgage payments is based on a standard rate of interest (set by reference to the Bank of England average mortgage rate). There is also a limit on the amount of housing costs which can be met. The limit on the total of all loans eligible for help is £100,000. There is a waiting period before help with housing costs is provided. The upper limit and the waiting period were modified for anyone going on to benefit after 5 January 2009. The upper limit on loans eligible for help was raised to £200,000 and a waiting period of 13 weeks was introduced. In addition, a person claiming income-based JSA is able to get help with housing costs only for a maximum of 104 weeks. Housing costs can also be

Social Security Rights

609

restricted where the home is considered too big for a claimant’s needs or is in an unnecessarily expensive area. There are a range of circumstances when these restrictions may not be applied. Where a non-dependent, such as a grown-up son or daughter, lives in the household he or she is expected to contribute towards housing costs and a set non-dependent deduction is applied. The level of deduction depends on the nondependent’s income. Certain non-dependents do not attract a deduction, including a person under 25 who is receiving income support or income-based JSA. Owner-occupiers who are on the means-tested benefits outlined above are also entitled to a rate rebate. This will normally be the full amount of rates unless the person has a non-dependent, in which case a fixed deduction is applied to the assistance available. An owner-occupier who is not on one of the means-tested benefits already mentioned can claim help with rates by claiming a rate rebate from the local Land and Property Services office. Help with housing costs is normally paid direct to the building society, bank or other lender. A person in arrears with their mortgage can have a set amount deducted towards meeting the arrears. This is currently £3.65 per week (2014–15 rate). At present, the government is embarking on a consultation exercise to look at the future of mortgage interest support. One proposal under consideration is that people of working age on certain means-tested benefits who have received help with mortgage interest for more than two years will have a charge placed on the property against the amount of any further help they receive.

Housing Costs and Tenants on Specific Means-tested Benefits Housing Executive, housing association and private rented sector tenants can receive help towards their rent through housing benefit. People on income support, income-based JSA, income-related ESA and pension credit are invited to claim housing benefit as part of their claim for these benefits and are then ‘passported’ on to housing benefit. People in work or not on the one of the benefits mentioned above must make a direct claim for housing benefit at their local Housing Executive office. Tenants on income support, income-based JSA, income-related ESA or pension credit receive maximum housing benefit, that is, 100 per cent help with rent and 100 per cent help with rates. This is subject to the eligible rent being reasonable and on there being no deductions for non-dependents, ineligible fuel or service charges. Local housing allowances are set in the private rented sector for each category of dwelling and claimants are expected to live in accommodation within the lowest 30 per cent of rents in the broad rental market area. In addition, there is an

610

Les Allamby

overall upper limit payable on accommodation for one bedroom to four or more bedroom accommodation. These upper limits rarely apply in Northern Ireland, but the 30 per cent rule does affect claimants in the private rented sector. The local housing executive office can advise what the 30 per cent limit is for its particular area. The local housing allowance is increased each year. In April 2014 it is to be raised by the amount of rent at the thirtieth per centile, or by 1 per cent, whichever is the lower. This means claimants will have even less choice about where to find affordable accommodation. In addition, a person is supposed to occupy private rented sector accommodation of a specific size. Up to a maximum of four bedrooms is allowed, with set rules for who should occupy bedrooms. For single claimants under 35 years of age the assumption is made when deciding eligible rent that the accommodation should be one-bedroom shared accommodation (rather than self-contained accommodation). There are very limited specific exceptions where this rule does not apply. Service charges included in rent may be included as eligible for help. Housing benefit legislation lists the service charges which can be included in housing benefit as well as those which do not attract help. Set deductions from the level of housing benefit payable are also made for non-dependents living in the household. The level of deduction from rent and rates is based on the non-dependent’s gross income. The 30 per cent and size restrictions do not apply to Housing Executive and housing association accommodation. However, in Great Britain the Welfare Reform Act 2012 introduced size-related restrictions (the bedroom tax) for housing benefit payable in the public rented sector from 2013 and it is likely that similar arrangements will apply, although only for new claimants, once the Welfare Reform Bill is passed.

Housing Costs and Other Tenants Tenants who are working or are on other benefits can also claim housing benefit depending on their circumstances. To qualify a person must have £16,000 or less in savings and have a low enough income to satisfy the means test. The restriction of rent in the private sector to 30 per cent of the lowest rents in the broad rental market area, annual increases to the local housing allowance, overall upper limits, size requirements and rules for single people aged under 35 all still apply. To calculate entitlement to housing benefit the starting point is to work out maximum housing benefit, that is the weekly amount of eligible rent (taking into account any restrictions mentioned above) less any non-dependent deductions, ineligible fuel charges, service charges and so on. Next, a person’s applicable amount has to be calculated. This is a set sum of personal allowances paid to a person depending on his or her age, whether single, a lone parent or someone

Social Security Rights

611

with a partner, plus set amounts for children. Added to this are further sums for having a family, having a disabled child or adult in the house, or being a carer. Each premium has specific circumstances which must be met in order to be included in the applicable amount. The income of the claimant’s partner is also taken into account, but the income of a dependent child is normally ignored. Net earnings from employment are taken into account, that is, earnings after deductions for income tax, class 1 national insurance contributions and half of any contribution to a personal or occupational pension scheme. For self-employed people, net profit is taken into account. Certain amounts are disregarded from employed or self-employed earnings: these can be £25, £20, £10 or £5 per week, depending on circumstances. Other income is normally taken into account in full, except where specific rules allow the income to be ignored either in part or completely (eg there are specific rules on how other social security benefits and maintenance payments are to be treated). The claimant’s applicable amount is then compared with the claimant’s actual income. If the actual income is less than the applicable amount then maximum housing benefit is payable (ie 100 per cent of eligible rent and eligible rates, less deductions for non-dependents, etc). Where actual income is greater than the applicable amount then 65 per cent is deducted from the excess for rent and 20 per cent for rates. A hypothetical example may make all of this clearer. Let’s say that David and Jenny’s applicable amount is £105.95 per week. Their actual income is £125.95 per week. The eligible rent is £85 per week and eligible rates are £15 per week. As the actual income is £20 above the applicable amount the couple will have their help with rent reduced by 65 per cent of £20, that is, £13.00, and help with rates will be reduced by 20 per cent of £20, that is, £4. As a result, David and Jenny will get £72 per week help with rent and £11 per week help with rates. Tenants in Housing Executive or housing association accommodation have their rent paid direct to the landlord. People in the private rented sector normally also have their rent paid direct to the landlord. A person in rent arrears who is on certain benefits can have an amount of £3.65 per week deducted from those benefits to help meet the arrears. This money is again paid direct to the landlord.

Those With Not Enough Money to Meet Their Needs The social fund is designed to meet certain specific needs which a person cannot afford to meet him- or herself. There are two different parts of the fund. The regulated fund covers maternity, funeral, cold weather and winter fuel payments. The discretionary fund covers community care grants, budgeting loans and crisis loans. The regulated fund will continue after the Welfare Reform Bill has been

612

Les Allamby

passed, while the discretionary fund will be replaced by the new discretionary support fund. The discretionary support fund will be open to people in work and in low pay as well as people claiming specific benefits.

Sure Start Maternity Grants A sure start maternity grant of £500 is payable where a claimant or member of the claimant’s family is pregnant or has given birth in the last three months. A payment can also be made where a child is aged less than 12 months and is the subject of an adoption order, adoption placement, guardianship arrangements, a residence order, a parental order, or surrogacy arrangements. A person can also claim if he is the child’s parent and is responsible for the child but is not the mother’s partner. In addition, there must be no other member of the claimant’s family under 16 years of age at the time of the claim. To qualify for the grant a person or partner must be receiving income support or income-based JSA, income-related ESA, CTC at a rate more than the family element, working tax credit (WTC) including the disability or severe disability element, or pension credit. The payment can be topped up by a budgeting loan from the discretionary social fund.

Funeral Expenses Payments To qualify for this payment the person taking responsibility for the funeral must receive income support, income-based JSA, income-related ESA, housing benefit, CTC worth more than the family element, WTC which includes a disability or severe disability element, or pension credit. The person claiming must take responsibility for the funeral and be the partner of the deceased, a parent, son or daughter of the deceased, or another close relative or a friend. Where claiming as a close relative or a friend there are rules to check that it is not more appropriate for someone closer to the deceased to take responsibility for the funeral. The claim must be made within three months of the date of the funeral. The amount awarded if a funeral expenses payment can be paid is up to £700, plus the cost of a new burial plot, cremation fees, necessary documentation to secure the release of the assets of the deceased, certain reasonable transport costs over 50 miles and the costs of one return journey over 50 miles to arrange or attend the funeral. The award can be topped up with a discretionary budgetary loan from the discretionary social fund. An amount can be deducted from an award where the deceased’s assets are available without the need for probate (ie official certification of the validity of a will). These deductions can include payments due under an insurance scheme, pre-paid funeral plans or payments from a charity or other family members.

Social Security Rights

613

Cold Weather Payments A cold weather payment of £25 is paid for each week in which there has been seven consecutive days within which the average daily temperature was below 0 degree Celsius. To qualify, a person must have been receiving pension credit (see page 621 below). In addition, a person on income support or income-based JSA can qualify provided that their benefit includes a disability, severe disability, enhanced disability, disabled child, pensioner or higher pension premium. A person can also qualify if he or she is on income-related ESA and receiving the pensioner, severe disability, enhanced disability or work-related or support components of that benefit. A person on any of these benefits with a child aged under five, and a person on CTC which includes a disability or severe disability element, also qualifies. A winter fuel payment is paid to people who are the qualifying age for pension credit. The award is normally £200 if the person is aged under 80 years and £300 if he or she is aged 80 or over on the third Monday of the September before the winter in question.

Community Care Grants, Budgeting Loans and Crisis Loans The discretionary social fund consists of community care grants, budgeting loans and crisis loans. Around 80 per cent of payments are made through loans. The social fund is cash limited. Loans are interest free and are recovered through weekly deductions made from benefits. There is no right of appeal to a social security appeal tribunal against the refusal to award the payment; instead, there is an internal review system which includes a further review to a social fund inspector. To be entitled to a social fund payment a person must be receiving income support, income-based JSA, income-related ESA or pension credit. The exception to this is a crisis loan, for which receiving certain benefits is not a qualifying condition; instead, a claimant must have insufficient resources to meet immediate short-term needs. For budgeting loans a claimant must have been on one of the benefits for 26 weeks prior to the application being decided. The Department for Social Development issues directions which must be followed and discretionary guidance which must be considered by staff before payments of a community care grant or loan can be made. Community care grants are payable where specific circumstances are met, namely where a payment will: — help a claimant or a member of his or her family to become established in the community following a stay in residential or institutional care (such as a hospital, care home or prison); — enable a claimant or a member of his or her family to remain in the community rather than having to go into residential or institutional care; — ease exceptional pressures on a claimant and his or her family;

614

Les Allamby

— allow a claimant or partner to care for a prisoner or young offender on temporary release; or — provide a claimant or a member of his or her family with travel expenses in specific circumstances, for example, to visit someone in hospital, attend a relative’s funeral, ease a domestic crisis, visit a child who is with the other parent pending a court decision, or help with a move to more suitable accommodation. A community care grant will be reduced by the amount of savings above £500 (or £1,000 if the claimant is aged 60 or over) that a claimant has. There is a long list of items which a grant cannot cover, including educational and training needs, respite care, work-related expenses, medical, surgical, optical, aural or dental needs, debts to government departments and certain specific housing costs. Budgeting loans are designed to help with specific costs, including furniture and household equipment, clothing and footwear, rent payable in advance, removal expenses, improvements, maintenance and security of the home, expenses associated with looking for or re-entering work, hire-purchase or other debts associated with this list of items, and maternity and funeral expenses. To qualify, the claimant must be likely to be able to repay the loan within 104 weeks of the award. The minimum loan is £100 and the maximum is £1,500 (taking into account any other loans previously made). When applications are considered, couples with children and lone parents are given a higher priority than couples without children and single people. Crisis loans are payable to meet expenses to cover an emergency or the consequences of a disaster. The loan must be the only way to prevent serious damage or serious risk to the health and safety of the claimant or a member of his or her family. In addition, crisis loans can be paid for rent payable in advance to a private landlord when a community care grant has been awarded for resettlement after a stay in residential or institutional accommodation. The claimant must be likely to repay the loan within 104 weeks. The maximum loan is £1,500, less any existing social fund loans, and there is no minimum loan. Certain items are excluded from being covered, as with community care grants. In addition, crisis loans for cookers and beds will be made only where there has been some kind of disaster.

Those Who are Pensioners A person who reaches pensionable age is entitled to a state retirement person based on the national insurance contributions he or she has paid (or in specific circumstances on those paid by a married or civil partner). The state retirement pension is not means-tested. The current state pension system is due to be replaced with a single-tier flat rate pension from April 2016, but this will apply to future pensioners only.

Social Security Rights

615

Pensionable age is currently in a state of flux. The government has decided to equalise the pensionable age for women and men and to increase the eventual age at which men and women can receive their state retirement pension. Until relatively recently, women qualified for a pension at the age of 60 and men at the age of 65. However, the pensionable age for women is being increased to 65 on a phased basis by November 2018. From that time, the pensionable age will increase for both women and men to the age of 66 by October 2020. Between 2026 and April 2028 it will increase to 67 and by the mid 2030s it will increase still further to 68. Eventually, state pension age is expected to increase to 69 in the late 2040s and to 70 by the 2060s. There is a website to check what impact this will have on people of different ages today: see www.direct.gov.uk/en/pensionsandretirementplanning/dg-4017919.

State Retirement Pension The level of state retirement pension depends on the national insurance contributions paid by the claimant. A full state retirement pension is worth £113.10 per week (2014–15 rate). Additional amounts can be paid including a graduated retirement benefit based on earnings paid between 1961 and 1975, an additional state pension based on additional contributions, and 25 pence per week for people aged 80 or older. A person can also defer his or her entitlement to pension and receive a higher weekly sum. People who do not have a full national insurance contribution record can receive a lower weekly pension. A category B state pension can be paid based on a living or late spouse’s or civil partner’s national insurance contributions. To qualify, the person must be married or have a civil partner when reaching pensionable age, or be a widow, widower or surviving civil partner who has not remarried or entered a new civil partnership. A person who enters into a new marriage, civil partnership or a new partner relationship after qualifying for a category B pension can continue to claim the pension. A person who is married or in a civil partnership and whose partner dies after he or she reaches pensionable age can claim a pension based on the deceased’s contributions. In certain circumstances a divorced person can use a spouse’s or civil partner’s contributions up to the end of the marriage or civil partnership if he or she does not qualify for a pension in his or her own right. A category B pension for a spouse or civil partner is £67.80 per week and for a widow, widower or widowed civil partner is £113.10 per week (2014–15 rates).

Guaranteed Pension Credit A person who reaches pensionable age and has income below a set level can claim guaranteed pension credit. The level of payment depends on whether a claimant

616

Les Allamby

is single or one of a couple and whether he or she has any caring responsibilities, disabilities or any eligible housing costs if paying off a mortgage. The standard minimum guarantee is £148.35 for a single person and £226.50 for a couple. In addition, £61.10 for severe disability is added to this where specific circumstances are satisfied. If both partners satisfy the conditions then two amounts can be paid. A further £34.20 is paid for each person who satisfies specific conditions for caring responsibilities (all 2014–15 rates). The minimum guarantee payable is assessed by comparing the standard, additional and eligible housing costs against the actual income and savings a claimant possesses. The first £10,000 of savings is ignored. It is assumed that any savings above £10,000 generate £1 of income for each £500 (or part of £500). There are detailed rules on which forms of income count when assessing entitlement to guaranteed pension credit. State retirement pensions, occupational pensions, and carer’s allowance, for example, count in full, while attendance allowance and disability living allowance are ignored. Where the minimum guarantee is assessed as being higher than the income taken into account then the difference is paid as guaranteed pension credit. In addition to guaranteed pension credit a claimant or partner who is aged 65 or older may qualify for savings credit which is payable on top of the guaranteed pension credit. To qualify, a claimant must have a qualifying income of more than £120.35 per week if a single person or £192.00 if one of a couple. The calculation of the additional savings credit is subject to a maximum savings credit, which is £16.80 per week for a single person and £20.70 per week for a couple (2014–15 rates).

Those Who are Unemployed and Seeking Work Jobseeker’s allowance (JSA) is paid to claimants who are unemployed and looking to find work. There are two types of JSA: — contributory JSA, which is based on national insurance contributions and non means-tested; and — income-based JSA, which is means-tested. Contributory JSA is worth £72.40 per week for people aged 25 and over and £57.35 per week for those under 25 (2014–15 rates). It is reduced penny for penny if the claimant is receiving certain pension payments worth more than £50 per week. Part-time earnings which are above the rate of benefit payable may also affect entitlement. Contributory JSA is paid for a maximum of 26 weeks and there are two contribution conditions. First, a person must have paid sufficient national insurance contributions in one of the last two complete tax years ending before the relevant benefit year. The relevant benefit year is normally the year in which the job-seeking period began. Second, a person must have paid sufficient national

Social Security Rights

617

insurance contributions or received sufficient national insurance credits in the last two complete tax years before the relevant benefit year. Contributory JSA can be topped up by income-based JSA during entitlement or a person can move on to the income-based benefit once the contributory benefit is exhausted. Income-based JSA is means-tested. To qualify, a person must not have savings of more than £16,000. Savings of between £6,000 and £16,000 are assumed to generate an income of £1 for every £250 (or part of £250) above £6,000. The amount of income-based JSA payable is determined by comparing income to applicable amounts (ie set figures determined by the government, which are increased every April). The applicable amount is made up of personal allowances, premiums for any special needs and housing costs for owner-occupiers. The personal allowance rates allocated to a claimant depend on the person’s age, with a higher rate for those aged 25 or older and a lower rate for under 25s and specific rates allocated to single people, lone parents and couples. Additional premiums are payable for claimants claiming for children, for children with a disability, for adults with a disability and for carers. Each premium has specific conditions and there is a disability, enhanced disability and severe disability premium which all have different conditions. The applicable amount including any housing costs for owneroccupiers is then compared with the income of the claimant and any partner he or she may have. Any earnings are taken into account after payment of tax, national insurance contributions and half of any payments made towards a personal or occupational pension. Earnings have a ‘disregard’ of £25, £10 or £5 per week depending on circumstances. A similar disregard applies to income arising from self-employment, which is calculated from a person’s net profit. There are rules to cover other forms of income. Certain income counts in full, such as carer’s allowance, contributionbased JSA, contributory ESA, maternity allowance, statutory sick pay, statutory maternity, paternity and adoption pay (less tax, national insurance contributions and half of any contribution towards an occupational or personal pension), bereavement allowance, widowed parent’s allowance, occupational pensions and WTC. Other benefits are ignored completely, such as attendance allowance, disability living allowance, child benefit, CTC, social fund payments and housing benefit. There are special rules for maintenance payments, charitable and voluntary payments, personal injury payments and a variety of other income payments. The amount of income-based JSA payable is the difference between the assessed applicable amount and income that applies to a claimant. There are also a series of job-seeking conditions which must be met if incomebased or contributory JSA is to be paid. These include a claimant (or both claimant and partner if no claim is being made for a child) being available for work, actively seeking work and having signed a jobseeker’s agreement with a Department for Employment and Learning personal adviser. In addition, the claimant must not be working 16 hours or more per week and any partner must not be working more than 24 hours per week.

618

Les Allamby

Where a person does not actively seek work or places unreasonable restrictions on looking for work, leaves a job without good cause or because of misconduct, or fails to attend a training or employment programme, benefit sanctions can be applied. The level of sanction depends on the particular behaviour and whether it has been committed on a previous occasion within a recent specified period. It can last for between one and 26 weeks. A single person, a member of a couple (other than a joint claim couple) or a joint claim couple where both members are given a sanction lose all JSA. A joint claim couple where only one person is given a sanction will receive a reduced rate of JSA. A claimant can argue that he or she has good cause for refusing to avail himor herself of a job opportunity or to engage in a training programme or other job-seeking requirements. Certain groups can claim hardship payments during a sanction period, which means a reduction in the applicable amount of 20 per cent or 40 per cent depending on circumstances. The Welfare Reform Bill proposes a much tougher programme of sanctions, including a loss of benefit for some individuals of up to three years for a third offence in specific circumstances. Hardship payments are to be replaced with loans. There are also special rules for studying while on income-based JSA. The rules vary depending on the age of the claimant when he or she starts the course. For people aged 19 or over at the start of the course the claimant must normally be on a part-time course, although there are exceptions to this rule.

Those Who are Unemployed and Not Seeking Work Income support is payable to certain groups of working-age claimants whom it is recognised should not be required to seek work. These groups, who do not have to ‘sign on’, include people deemed sick or disabled, lone parents with a child under seven years of age, and carers who are receiving carer’s allowance. The amount of income support payable depends on the applicable amount allocated to the claimant, less any income he or she is deemed to have. The applicable amount is based on personal allowances, premiums and housing costs for owner-occupiers. The set amounts and rules on savings and income are the same as those which apply to income-based JSA. The Welfare Reform Bill will leave lone parents having to sign on once the youngest child reaches five years of age.

Those in Work and on a Low Income A person in paid work, but on a low income, can claim working tax credit (WTC) and child tax credit (CTC). These benefits are managed by HMRC.

Social Security Rights

619

Working Tax Credit To qualify for WTC a claimant must work: — 16 hours per week, where a claimant has a physical or mental disability which creates a disadvantage in getting a job and qualifies for a disability element, or where a claimant or his or her partner is aged 60 or over; — 24 hours per week, where a claimant or partner is responsible for a child; for couples, the 24 hours can be met by a combination of the claimant’s and partner’s hours. providing at least one of the couple works 16 hours or more each week; or — 30 hours per week, if aged 25 years or older. A claim for WTC is normally made jointly with a partner and includes any children for whom the claimant is responsible. It is calculated by assessing the maximum WTC that applies to the claimant, comparing this with income coming in, and applying the appropriate threshold figure set by government each year. The maximum WTC is assessed by adding together all the elements that apply to a claimant. These elements (at 2014–15 rates) are as follows: — — — — — —

basic element: £1,940 a year; lone parent/couple element: £1,990 a year; 30 hour element: £800 a year; disability element: £2,935 a year; severe disability element: £1,255 a year; childcare element: based on 70 per cent of actual childcare cost up to a maximum of £175 per week for one child and £300 per week for two children.

Relevant income for WTC purposes is normally based on the previous tax year’s income. Where a claimant’s income is due to drop, he or she can seek to have the prospective current tax year’s income taken into account. HMRC will assess final entitlement at the end of the tax year after the award has been made. A specific threshold is applied to the claimant. If he or she is entitled to WTC only, or to WTC and CTC, the threshold is £6,420. If he or she is entitled to CTC only, the threshold is £16,010. Where the claimant’s income is less than the threshold, the maximum amount of WTC is payable. If the claimant’s income is more than the threshold figure then 41 per cent of the excess sum is subtracted from the maximum WTC. WTC and CTC are benefits paid at a daily rate, so if a claim is made part way through a tax year, entitlement is calculated on the basis of the number of days left in the tax year from the date of claim.

Child Tax Credit CTC can be paid to anyone who is responsible for a child and is on a low income. It can be paid to claimants whether they are in or out of work. For people in work

620

Les Allamby

a means test is applied. This entails comparing the claimant’s income with an assessed maximum CTC. The maximum CTC is calculated as follows: — child element: £3,100 for each child who receives disability living allowance or is registered blind; — severe disability element: £1,255 for each child who gets the highest rate of DLA; and — family element: £545 for having at least one child. The maximum amount of CTC is compared with the claimant’s income. The income is compared to a set threshold figure of £6,420 where a claimant is receiving WTC and CTC, and £16,010 if no WTC is included. Any income above the threshold leads to a reduction in tax credits below the maximum CTC by 41 per cent of the excess.

Universal Credit Universal credit is a new benefit that will be introduced once the Welfare Reform Bill has been passed, replacing current means-tested benefits and tax credits for people of working age. An outline of the proposals was contained in the White Paper Universal Credit: Welfare that works, published in 2010, and the basic provisions for Great Britain are set out in the Welfare Reform Act 2012. The Welfare Reform Bill which is currently before the Northern Ireland Assembly is based on the provisions enacted for Great Britain. The original timetable for the introduction of universal credit in both Great Britain and Northern Ireland has slowed considerably, partly because of serious difficulties with the IT arrangements for the new benefit.

Timetable The timetable for the proposed changes in Great Britain is as follows — An initial series of 10 pathfinder schemes were launched in April, July and October 2013 in parts of England, Scotland and Wales. These covered only single people with straightforward circumstances. — These ten pathfinders has been expanded with claims extended to couples during the summer of 2014. The intension is to then roll out claims to families. — Universal credit will be fully rolled out in Great Britain during 2016 and 2017. Claimants on ESA will not be moved to universal credit until after 2017, suggesting that the roll-out will not be completed until 2018 or 2019. — Any introduction in Northern Ireland will be considerably behind many parts of this timetable.

Social Security Rights

621

The following benefits will be abolished: — — — — — —

income support; income-based JSA; income-related ESA; housing benefit; WTC and CTC; crisis loans and community care grants: responsibility for an equivalent to these will be passed to the Department for Social Development, in a new discretionary support scheme; and — budgeting loans: these will be replaced by payments on account (ie an advance of universal credit) in cases of need. Benefits other than those listed above will remain. In particular, people will still be able to claim: — contribution-based JSA, though the earnings rules will be aligned with those for universal credit; — contributory ESA, though again the earnings rules will be aligned with those for universal credit; — child benefit; — carer’s allowance; — bereavement allowance, bereavement payment and widowed parent’s allowance; — industrial injuries disablement benefit; — statutory sick pay; — maternity allowance; — funeral payments; and — maternity grants and cold weather payments: these will be paid automatically when the qualifying criteria are met.

Who will be able to claim universal credit? Universal credit will replace means-tested benefits and tax credits for working-age people up to pension credit age. It will be paid to people whether they are in or out of work. Details in the Welfare Reform Act 2012 include the following basic conditions: — claims may be made by a single person, or by members of a couple jointly; — a claimant must be at least 18 years of age (regulations may prescribe a different minimum age in special cases); — a claimant must be under the qualifying age for pension credit; where one member of a couple is above pension credit age and the other below then universal credit rather than pension credit must be claimed; the capital rules will be the same as for income support, with lower and upper capital limits

622

Les Allamby

and tariff income assumed for capital between the limits; this will exclude people with savings over £16,000; some income will be disregarded, such as DLA (and its replacement, PIP), while other income will be taken into account in full, such as occupational and personal pensions; — net earnings above the earnings disregard (see below) will be deducted from universal credit at a proposed rate of 65 per cent, that is, claimants will keep 35p for every pound earned above their disregard; and — a new minimum income will be assumed for self-employed claimants (see below).

How Much Will Universal Credit Be ? Universal credit will be made up of: — personal amounts for a single claimant or couple; — a child element for each child, with an increase if any child is disabled or severely disabled; — a limited capability for work and/or work-related activity element where an adult is unable to work; — a carer element for someone looking after a severely disabled person; — a housing element for home-owners or tenants; and — a childcare costs element. The benefit will be subject to a maximum award based on median net earnings (ie a ‘cap’). In April 2014 this was £350 per week for single people and £500 for others. There will be exceptions to the cap for example, for those on DLA (or PIP), receiving a war pension, on ESA and receiving the support component and for some working families, and the introduction of the cap will be delayed for a period where a claimant was previously in work in certain circumstances. The amounts will be at a similar or higher level of support than the current system provides, with benefit rates for people not in work generally being the same as now. There will be transitional protection for claimants who move from an existing means tested benefit to universal credit. Universal credit will normally be paid monthly, though in Northern Ireland there will be more flexibility to pay fortnightly. To date, no details of this flexibility have been published.

What Will Be the Earnings Disregards ? Different amounts will be disregarded from earnings before the so-called taper applies, in order to reflect the needs of different families. The amounts of the

Social Security Rights

623

disregards will be set by regulations. The earnings disregard called the work allowance is set at a higher or lower level. A lower work allowance is applied where universal credit includes a housing costs element. A higher work allowance applies where there is no housing costs element. Based on the pathfinder arrangements for 2014–15, the monthly disregard on earnings will be:

Lower Work Allowance Single — not responsible for a child: £111; — responsible for at least one child: £263; — has limited capability for work: £192.

Couple — no children: £111; — responsible for at least one child: £222; — one or both have limited capability for work: £192. The amount to be disregarded will be reduced depending on how much is included in universal credit for housing support.

Higher Work Allowance Single — not responsible for a child: £111; — responsible for at least one child: £734; — has limited capability for work: £647.

Couple — no children: £111; — responsible for at least one child: £536; — one or both have limited capability for work: £647. A new minimum assumed income from self-employment for people who are registered as self-employed is to be introduced. This will be set at the national minimum wage for the number of hours of work reported. A claimant starting a new business will be given 12 months before the minimum assumed income is applied. This 12-month rule can be applied only once in any five-year period. Other income will be taken into account in full or in part or will be disregarded, under set rules.

624

Les Allamby

How Will Universal Credit Be Paid ? Universal credit will be administered by the Social Security Agency. Couples will make a joint claim, normally by telephone, although the aim is for most claims to be made online with alternative access kept to a minimum. Universal credit will use HMRC’s planned ‘real-time’ IT system to identify earnings when they are paid. Employers will be expected to keep in touch with the Social Security Agency about changes to claimants’ financial circumstances. Payments will normally be made to the head of the household. In Northern Ireland there is expected to be greater flexibility to split payments between couples, but at the time of writing no details of how this will work in practice have been published.

Work-seeking Arrangements Work-seeking arrangements around entitlement will continue, administered in Northern Ireland by the Department for Employment and Learning, or its successor. In Great Britain, the Work Programme was introduced in 2011 to provide comprehensive training, education and other work opportunities. In Northern Ireland, there will be no direct equivalent of the Work Programme, but a major training initiative for the unemployed—the ‘Steps to Success’ programme—has been launched in 2014. There will be more conditionality and tougher sanctions for universal credit than for existing benefits. All claimants must accept a ‘claimant commitment’ as a condition of receiving universal credit (and JSA, once the Welfare Reform Bill has been passed). They will then be placed into one of the four groups listed below (for which other qualifying conditions may in time be prescribed). Each adult in the household will be placed into a group depending on his or her individual situation. There will be a ‘conditionality threshold’, based on earnings and hours worked. The limit is likely to begin at the point where people would now lose entitlement to out-of-work benefits, but this may change in the future.

Claimants Subject to No Work-related Requirements — people with limited capability for work-related activity because of health or disability, ie those currently in the support group for ESA; — lone parents or the lead carer in a couple with a child under one; and — carers with regular and substantial caring responsibilities for a severely disabled person.

Social Security Rights

625

Claimants Subject to the Work-focused Interview Requirement Only — lone parents or the lead carer in a couple with a child over one but below a prescribed age (which is likely to be three). People in this group will be expected to attend periodic interviews to discuss their plans for returning to the labour market.

Claimants Subject to the Work-preparation Requirement — people with limited capability for work because of health or disability, that is, those currently in the work-related activity group for ESA; and — lone parents or the lead carer in a couple with a child aged three or four. This group will be expected to take reasonable steps to prepare for work, such as attending a skills assessment, improving personal presentation, participating in training or an employment programme, and undertaking work experience or a work placement.

Claimants Subject to all Work-related Requirements — everyone else: this is the default category for claimants, including lone parents and couples with children over the age of five. The members of this group will be subject to a work search requirement (including making applications and registering with employment agencies) and a work availability requirement (subject to limitations to be prescribed), as they would be already if claiming JSA.

Sanctions ‘Higher level sanctions’ may be imposed on claimants subject to all work-related requirements. These may apply if there has been a failure for no good reason to comply with the requirements to prepare or apply for work, to take up an offer of paid work, and not to cease work voluntarily or through misconduct. The sanction may take the form of a reduction of the award, for a period of up to three years, depending on the number and regularity of such failures. Other sanctions may be imposed on claimants who are subject to work preparation requirements, for example, if they fail to undertake work-related activity or to attend a work-focused interview group. They may be imposed for a period until a claimant meets the compliance conditions, or for up to 26 weeks.

626

Les Allamby

Repayable hardship payments may be available for claimants who have been subject to sanctions and will be in hardship as a result. Regulations will prescribe the circumstances and matters to be taken into account, the amount payable and the period during which payments are recoverable.

Residence Requirements A significant number of benefits have residence conditions attached to them. The rules vary between different benefits. During 2014 the habitual residence test incorporating a right to reside test has been made more restrictive for income based JSA, CTC and child benefit. A number of other conditions affecting EU migrants and people from abroad were introduced for income based JSA. If any of these conditions are applied seek advice immediately. A number of legal challenges are pending around the residence rules that are currently being applied.

Rights of Appeal It is expected that there will be a right of appeal to a social security appeal tribunal against decisions concerning entitlement to universal credit, as with the current benefits and tax credits system. However, the Welfare Reform Bill includes provision for mandatory reconsideration, so there will be a two-stage process, with a requirement to seek reconsideration and then an appeal. These arrangements have been introduced for other social security benefits administered by the Social Security Agency from the summer of 2014 and for HMRC benefits from April 2014.

Useful Contacts The Child Poverty Action Group produces an annual welfare benefits and tax credits handbook available (£46 for 2014/15 edition) from: CPAG 94 White Lion Street London N1 9PF www.onlineservices.cpag.org.uk/shop The Law Centre (NI) produces an encyclopaedia of rights covering the main social security benefits: available at www.lawcentreni.org.

Social Security Rights

627

More detailed advice on social security benefits is available from local Citizens Advice Bureaux (tel: 028 9023 1120) or an independent advice centre (AdviceNI: tel: 029 9064 5919). Local housing executive office http://www.nihe.gov.uk/index/about/contact_us_home/your_nearest_office.htm

26 Environmental Rights NEIL FARIS*

A bewildering mass of environmental law and regulation faces the individual seeking a legal solution or legal help for an environmental problem. But there are several ways in which anyone can use the law to make an effective contribution in environmental decision-making. This chapter aims to set out some of the legal tools that can be used and offers some suggestions as to how the individual may make the most effective use of them. It will be seen that there is a body of law (including regulations and case law) which is beginning to develop better rights of access to environmental justice. This is driven by an international treaty known as the Aarhus Convention. In addition, the Human Rights Act 1998 and the human rights provisions of the Northern Ireland Act 1998 have now made themselves felt in matters concerning the environment.

The Aarhus Convention The Aarhus Convention is an international treaty which was adopted on 25 June 1998 by a wider group of European states than those in the EU. The EU itself is also a party to the Aarhus Convention. It entered into force in 2001 and the UK ratified it in 2005. The importance of the Convention lies in the fact that it seeks to provide access to environmental justice to the public across Europe. It provides for three pillars: — access to information; — public participation; and — access to justice in environmental matters. The Environmental Information Regulations 2004, which are examined in the next section, address the information requirements of the Aarhus Convention. Key issues still remain with regard to the right of public participation and the * I am grateful to Andrew Ryan, Partner and Head of Environmental Law at Tughans, solicitors in Belfast, for his helpful and erudite comments on a draft of this chapter, but I alone am responsible for the final contents.

630

Neil Faris

right to access to justice in environmental matters. These issues are discussed at the end of this chapter in the context of the often prohibitive legal costs that the individual may face when taking a case to court.

The Right to Environmental Information It all starts with information: without knowledge you cannot be an effective participant in the debate on any environmental issue (see Chapter 10 on the right to access information). There are specific and separate provisions for access to environmental information, deriving from the law of the EU as contained in Directive 2003/4/EC on Public Access to Environmental Information. This Directive acknowledges that the EU is a party to the Aarhus Convention and affirms the duty of the EU to adopt measures to implement the right to environmental information. The 2003 Directive was implemented in Northern Ireland by the Environmental Information Regulations 2004. These provide that any individual has the right to request environmental information from any ‘public authority’, including government departments, district councils, other public bodies (as defined in the Regulations) and ‘any other body carrying out functions of public administration’. ‘Environmental information’ also has a very wide definition. It includes information on: — the state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, including wetlands, coastal and marine areas, and biological diversity and its components, including genetically modified organisms and the interaction among those elements; — factors such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment affecting or likely to affect the environment; — measures (including administrative measures) such as policies, legislation, plans, programmes, environmental agreements, and activities likely to affect the elements and factors referred to in the areas above, as well as measures or activities designed to protect those elements; — reports on the implementation of environmental legislation; — cost–benefit and other economic analyses; and — the state of human health and safety, including contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures in so far as they are, or are likely to be, affected by the above elements of the environment. The right extends to obtaining the environmental information from any other person or body who is carrying out any functions of public administration or who has public responsibilities for the environment. Accordingly, the privatised

Environmental Rights

631

companies which provide utility services, such as Power NI, may be obliged to provide on request environmental information relating to their public functions. This does not extend, however, to information held by Power NI, or any of its subsidiary companies, which does not relate to the public supply of electricity. The 2004 Regulations specify that the public body concerned may impose a reasonable charge for providing the information, other than for access to public registers or lists of environmental information held by public bodies. The public body must deal with the request within a period of at most 20 working days (though there is provision for a further 20-day extension if needed because of the complexity and volume of the requested information). The Regulations do not specify a standard charge, but any charges must not exceed what the public body concerned believes to be a reasonable amount. There are exceptions in the Regulations to the obligation to disclose environmental legislation, but a public body may rely on an exception only where the public interest in maintaining the exception outweighs the public interest in disclosing the information. It is also important to note that public bodies must apply a presumption in favour of disclosure. The enforcement and appeals procedures of the Freedom of Information Act 2000 apply to the Environmental Information Regulations. More information about these procedures is contained in Chapter 10.

Planning Permission The development of property often gives cause for concern about the impact on the environment. The next section examines in that context the important procedures of environmental impact assessment, but first the circumstances in which planning permission is required need to be explained. Planning law is detailed and complex, so not all of the ground can be covered here. At the date of writing, planning control is still administered throughout Northern Ireland by the Department of the Environment. However, the new Local Government Act (NI) 2014 now gives the legislative framework for 11 new district councils to replace the current 26 councils. Currently, the 26 councils have only a consultative role with regard to planning but the 11 new councils are to have a large measure of responsibility for at least local planning control. Provision has been made for this in the Planning Act (NI) 2011. This Act comprehensively reforms the planning system, including by simplifying planning procedures and their enforcement. At the time of writing the majority of provisions have not yet been brought into operation, pending the new councils assuming their powers and functions on 1 April 2015. This chapter therefore deals with the position with regard to planning at March 2014 and the reader, faced with a planning problem in the future, should check whether the 2011 Act has in the meantime been brought fully into operation.

632

Neil Faris

Under article 12 of the Planning (NI) Order 1991, planning permission is required for the carrying out of any ‘development’ of land. Article 11(1) defines development as: The carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in use of any buildings or other land.

Article 11(3) identifies a number of actions concerning buildings or land which are expressly ‘development’. The first is sub-division of a dwelling house. The second is deposit of waste on land. The third is the display of advertisements on any external part of a building which is not normally used for that purpose. In all three cases the actions are treated as involving a material change in the use of that part of the building. Article 11(2) of the 1991 Order provides, in turn, for a number of circumstances which are not ‘development’. The first is maintenance of the interior of a building, including works of improvement or other alteration which affect only the interior or which do not materially affect the external appearance of the building. However, the interior of a building as well as its exterior may be specifically protected if it is a listed building, that is, a building of special architectural or historic interest listed under article 42 of the 1991 Order. The maintenance of services by a district council or statutory undertaker providing services such as water, sewerage, electricity or gas is not development where the works are for the purpose of inspecting, repairing or renewing mains, pipes, cables or other apparatus, including the breaking open of any street or other land for that purpose. Use of buildings or land for ‘incidental purposes’ is not development. This is the case so long as the incidental use remains subordinate to the main use of the property. Of course, if you keep a dog or other domestic pet in your house, that can legally be described as an ‘incidental use’ of your house, but if you keep 40 dogs in your house it may be found that this is no longer an incidental use. It could be that your predominant use of the property is as a dog pound and it is no longer a domestic dwelling house. The use of land for agriculture and forestry is also not development for the purposes of the 1991 Order. This may cause problems when what is thought in ordinary language to be undesirable development in the countryside does not constitute development for the purposes of the 1991 Order. Note, however, that some agricultural and forestry development on a large scale may require environmental impact assessment even though it does not require planning permission. Likewise, harbour works, drainage and roadworks do not require planning permission but may still require environmental impact assessment. There are quite detailed rules about changes of use of commercial property. Some changes of use, such as the change of a bookshop to a clothes shop, would not be a material change of use and so would not require planning permission. Other changes of use, such as the change of a shop to an office, are material and do require planning permission. The rules are set out in the Planning (Use Classes) Order (NI) 2004.

Environmental Rights

633

Environmental Impact Assessments While all ‘development’ (as described above) requires planning permission, major development of land also requires environmental impact assessment before planning permission will be granted. So if you are faced with a major development in your neighbourhood you should immediately ask to see the ‘environmental statement’. This is a document which the developer must prepare and submit in connection with the necessary application for planning permission or other statutory permission required for major projects. The environmental statement is required for major projects by virtue of the Environmental Impact Assessment Directives of the EU (85/337/EEC, as amended by Directive 97/11/EEC). These Directives have now been further amended because of the EU’s obligations under the Aarhus Convention in respect of the rights of the public to participation and access to justice in categories of environmental decision-making. The amendments are contained in Directive 2011/92/ EU. Further changes will be made through a revised Directive 2014/52/EU which came into effect in May 2014 but is not required to be implemented in the UK until 2017. These changes include, for example, requirements to provide more information on cumulative impacts and alternatives plus more detailed screening decisions along with consideration of climate and health-related impacts. These various directives have been implemented in the law of Northern Ireland, for projects where planning permission is required, by the Planning (Environmental Impact Assessment) Regulations (NI) 2012. These amend and replace the previous sets of regulations in order to give effect to a variety of changes, including some brought about by case law. A consultation document issued by the Department of Environment in 2011 explains the changes. Of course, not every project requires environmental impact assessment: the Directive and the 2012 Regulations set out the categories of projects which do require such assessment. The first category covers works likely to have a major impact upon the environment: in these cases an environmental impact assessment is always required. The second category covers situations where the requirement for an assessment is discretionary: in these cases it is a matter for the government to assess whether such an assessment is required. The government must do this according to criteria set out in the 2012 Regulations, such as the scale, nature and location of the project. So in cases where the decision is that an environmental impact assessment is not required, objectors should press the Department of the Environment to explain and justify that decision.

How Assessments are Conducted Where environmental impact assessment is required the developer of the project must produce the environmental statement. The statement should assess all of the likely significant environmental impacts of the proposal upon the

634

Neil Faris

environment. In the case of most large projects, environmental consultants and other experts will be hired by the developer. They will produce apparently comprehensive reports on the various environmental aspects of the project. These reports, in the form of the environmental statement, will be submitted (in a planning case) together with the planning application and will be available for consultation or purchase by the public. This will become an invaluable reference source for any objector to the proposal. Environmental impact assessment should not be thought of as solely a paperbased exercise. Before beginning the assessment the consultants engaged by the developer should ‘scope’ the project. This entails assessing what are likely to be the environmental impacts of the project. For this purpose the consultants should engage in preliminary consultation with the relevant government departments and other public bodies, including, for instance, the local district council. However, such scoping may also require consultation with relevant environmental non-governmental organisations (NGOs), such as the Royal Society for the Protection of Birds or the National Trust. Consultation with local residents and other interest groups may also be required for the obvious reason that local people will have direct and personal knowledge of their local environment. Often local people and environmental campaigners will have a natural hostility to a proposed development. They will feel disinclined to cooperate with the developer or the developer’s representatives, such as the consultants, carrying out the environmental impact assessment. Everyone has to come to his or her own decision as regards a strategy for opposing a project. However, working with the developer’s consultants for the purpose of improving the environmental impact assessment does not necessarily mean that those who are so engaged are collaborating with the developer in the project itself. Properly carried out, an environmental impact assessment is not ‘for’ or ‘against’ a particular project. It should be what it says it is: an assessment of the environmental impact of the project which helps all concerned to assess whether or not the project should go ahead. The environmental statement should also help to identify ways in which the environmental effects of a project may be ameliorated. In effect, the project should then be permitted to proceed only in a modified form. In addition, those who participate fully in the process will come to understand the project all the more thoroughly. By cooperating with the developer’s consultants they will inevitably be in a better position to obtain all important information. Armed with that, they will be able to present more cogent opposition at later stages.

Post-Assessment Consultation It is also important to understand that the environmental assessment does not begin and end with the production of the environmental statement by the developer. After the developer has submitted the environmental statement, the Department of the Environment (in a planning case) then engages in a further

Environmental Rights

635

widespread consultation exercise. For instance, in the case of the planning application for a major landfill site at Magheramorne in County Antrim some years ago, the Department of the Environment obtained the views of over 30 consultees on the developer’s environmental statement. Consultation was carried out with different divisions of government, the relevant district councils and other public bodies, such as Northern Ireland Railways and the Northern Ireland Tourist Board. All of the consultation responses were gathered together by the Department and submitted to the ensuing planning inquiry. All of this information formed an extremely helpful volume of evidence and information for the objectors to the proposal. At this stage, armed with this information and other knowledge and advice (particularly local knowledge), the objectors themselves should not miss the opportunity to make representations to the Department of the Environment that the environmental statement is, in whole or in part, inadequate. This can be an extremely effective weapon in the hands of objectors to stop or at least delay a project. The objectors should seek to demonstrate to the Department that further environmental information is required from the developer on the basis of the environmental statement so far produced. At this stage the objectors should make a detailed and focused critique of elements of the environmental statement. This is not the stage for general declarations against the project, but more detailed criticisms at this time may well pay dividends. Of course, sometimes objectors are reluctant to show their hand and hope to save their strongest points for maximum use at any subsequent inquiry. That is a matter of tactics in each case. Note, however, that it is not every project that goes to an inquiry.

Planning Inquiries Where the Department of the Environment considers that a planning application involves a substantial departure from a local development plan or would affect a substantial section of the community, it may apply Article 31 of the Planning (NI) Order 1991 to the application. Under Article 31(2) it may ask the independent Planning Appeals Commission to hold a public local inquiry for the purpose of making a recommendation with regard to the planning application. The Planning Appeals Commission will appoint one of the members of the Commission, acting as an inspector, to conduct the inquiry. This is publicly advertised and objectors to the proposal are entitled to make representations and participate in the hearing. Sometimes these hearings can be extensive and longrunning events and can attract considerable interest, including representations from environmental NGOs as well as local residents’ groups and other objectors. The Planning Appeals Commission will make arrangements for the holding of the hearing either in its own offices in Great Victoria Street in Belfast or in other appropriate venues such as the local district council offices or a leisure centre in the locality concerned.

636

Neil Faris

Crucially, such a planning inquiry does not finally decide the issue of whether or not planning permission should be granted. After the inquiry has finished, the inspector holding it will consider all the submissions and evidence and will submit a report to the Board of the Planning Appeals Commission. The Commission will then make a corporate decision whether to accept or reject the report of the inspector who held the hearing. That decision then becomes the recommendation of the Planning Appeals Commission. This is submitted, together with the inspector’s report, to the Department of the Environment which will issue the final decision in the matter. There is no right of appeal against that decision, although either the applicant for the planning permission or any objector may consider applying for judicial review (see later in this chapter and also Chapter 2). Rather than ask the Commission to conduct an inquiry, the Department of the Environment may, under article 31(3) of the 1991 Order, exercise its power to give the developer notice of the decision the Department intends to make. In such case if the developer wishes to challenge the intended decision it may appear before and be heard by the Commission, which will issue its Report for consideration by the Department before it issues its final decision.

Objectors’ Tactics It can be seen from the above that objecting to works which affect the environment can be a lengthy and elaborate process. If you are an objector you should always bear in mind your ultimate goal. This is to achieve ultimate success in the decision to be issued by the Department of the Environment. Objectors can often mislead themselves as to the actual strength of their best points and thus testing them at an early stage with the developer may show weaknesses or points which the objectors should address further. In addition, developers and their professional advisers may then feel compelled to show something more of their case in response. Ultimately, the exchange of information between the parties is in the interest of the general public and for the benefit of the environment, which should be everyone’s ultimate goal. This is not an area where experts should be allowed total dominance. In the case of the Magheramorne landfill inquiry, (see page 635) local people from Magheramorne and the Islandmagee area played a key, and perhaps decisive, part in the successful opposition to the planning application. Local knowledge is very important: objectors cannot expect to succeed on mere emotion or on absolute commitment alone.

The Habitats Directive The Habitats Directive (its full title is Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora) is also a key piece of

Environmental Rights

637

environmental protection legislation. It has been implemented in Northern Ireland by the Conservation (Natural Habitats, etc) Regulations (NI) 1995, as amended. The Directive and the Regulations apply to specified species of wild animals and plants and to the network of European protected sites (including those in Northern Ireland) known as Natura 2000. In Northern Ireland these consist of Special Areas of Conservation (SACs) under the Habitats Directive and Special Protection Areas (SPAs) under the Wild Birds Directive (2009/147/ EC). They include the wetland sites protected by the Ramsar Convention on Wetlands (1971). The 1995 Regulations provide that a landowner or developer must not carry out specified development in cases to which the Regulations apply without first serving nine months’ notice in writing on the Department of the Environment. Where the site is an SAC or SPA, the work must not proceed without the consent of the Department. Furthermore, and this is particularly important for objectors, developments which will adversely affect the integrity of a protected site are forbidden even if the land being developed is itself outside the protected area. This is specifically provided for in Article 6 of the Habitats Directive. A development (wherever it is situated) may proceed only if an assessment of the implication for any protected conservation site shows that the integrity of the protected site will not be adversely affected. If the assessment shows a negative effect the development may proceed only if there is no alternative solution and if there are imperative reasons of overriding public interest, including those of a social or economic nature. In cases where there is a priority habitat, the permission of the European Commission must be obtained. In effect, then, the burden of proof shifts in these cases. Under the ordinary principles of planning law a developer who has applied for planning permission is entitled to the grant of planning permission unless the Department of the Environment can show reasons—‘material considerations’ they are called in law—why the permission should not be granted. However, where a site is protected under the Habitats Directive the Department has the responsibility of establishing that there will be no negative effect created by the development on the integrity of the protected site. In the case of the Magheramorne landfill inquiry (see page 635) the quarry was not itself protected. However, about 1.5 kilometres away in Larne Lough was the protected site of Swan Island, which was the habitat of a small colony of roseate terns. These birds are protected under the Birds Directive. The evidence of the Royal Society for the Protection of Birds was that the landfill site would attract gulls, which would then be likely to predate upon Swan Island and its fragile colony of roseate terns. Thus the development proposal was likely to have an adverse effect upon a protected site. The Director of the Countryside and Wildlife Division of the Environment Service himself gave evidence against the application on this particular point. In his report the inspector held that, although the developer was proposing gull control measures, any additional presence from gulls could upset what appeared to be a delicate balance for the survival of the colony of terns on Swan Island. He concluded that a planning condition (as had been

638

Neil Faris

suggested by the developer) to impose bird control measures at the landfill site at all times would not be sufficient to remove the suggested adverse affect. No other measures were suggested which would do so. Ultimately, this decision was upheld by the Department of the Environment for Northern Ireland. Accordingly, planning permission for the development was refused. This case highlights the importance of the Habitats Directive in such circumstances. The Department of the Environment has published details of the implementation of the Habitats Directive in a planning policy statement on Natural Heritage (PPS 2). This shows the sites protected in Northern Ireland at the time of publication of the Statement. Accordingly, anyone objecting to a proposal for developments should obtain this booklet and consider it carefully.

The Relevance of Human Rights As explained in Chapter 2, the Human Rights Act 1998 and the human rights provisions of the Northern Ireland Act 1998 have incorporated into the law of Northern Ireland many of the provisions of the European Convention on Human Rights (ECHR). Sometimes it is mistakenly alleged that the ECHR concerns only civil and political rights and does not provide for social and economic rights or for environmental rights. However, the Convention should be thought of as a ‘living instrument’. Certainly, when the Convention was drafted at the end of the 1940s, in the aftermath of the Second World War, environmental rights were probably not at the forefront of anyone’s mind. Nevertheless, there have been significant decisions and judgments under the Convention since then on environmental issues.

The Right to Life This is perhaps the over-arching right in the ECHR, though it has not so far received much scrutiny in the context of environmental rights. Nevertheless, in Osman v United Kingdom (2000) it was held that the state may be in breach of the ‘operational duty’ contained in Article 2 of the ECHR in circumstances where the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

This operational duty has been identified in subsequent cases in a variety of circumstances including in Oneryildiz v Turkey (2004) where methane from a rubbish

Environmental Rights

639

tip leaked, poisoning inhabitants of a shanty development. In general terms, the cases where an environmental liability may also encompass this right to life liability may be rare, but the right is a noteworthy development of the jurisprudence of the ECHR.

The Right to Property Article 1 of Protocol 1 to the ECHR provides some protection for property rights. The case law establishes that ‘property’ is to be given a wide meaning in this Article. The provision can be used by victims of environmental damage when their property rights have been infringed. It may also be used by businesses if they are able to argue that their property rights are infringed by the disproportionate application of environmental regulations. But the right in Article 1 is heavily qualified by the extent of the sphere of action allowed to governments under paragraph 2 of the Article. In effect, there is quite a high hurdle for claimants to get over if they are to succeed against the government. The most dramatic impact of Article 1 of Protocol 1 (taken together with Article 6 of the ECHR, which protects the rights to a fair trial and access to justice: see below) may be in relation to third-party rights (see the discussion on this topic below).

The Right to Private and Family Life Article 8 of the ECHR, which protects the right to a private and family life, has been interpreted by the European Court of Human Rights (ECtHR) in Strasbourg in ways which were probably never contemplated by those drafting the ECHR. In particular, it has been employed in several cases to indicate that states do have a duty of environmental protection. A striking example was Hatton v UK (2001). Here the applicants, being residents near Heathrow Airport, challenged the government’s policy to permit night flights (albeit with restrictions) to and from Heathrow. The challenge initially succeeded under Article 8 and under Article 13 (the right to an effective remedy). With regard to Article 8, the Court held that the modest steps (as they described them) taken by the government with respect to restrictions on night flights were not capable of constituting the ‘measures necessary to protect’ the applicants’ position: In particular in the absence of any serious attempt to evaluate the extent or impact of the interferences with the applicants’ sleep patterns and generally in the absence of a prior specific and complete study with the aim of finding the least onerous solution as regards human rights, it is not possible to agree that in weighing the interferences against the economic interests of the country—which itself has not been quantified—the Government set the right balance in setting up the [night flights] 1993 Scheme. (para 106)

Thus, the Court held that the government had failed to strike a fair balance between the UK’s economic well-being and the applicants’ effective enjoyment of

640

Neil Faris

their right to respect for their homes and their private and family lives. The Court also held there was no effective remedy under UK law, as the remedy of judicial review was not sufficient in the circumstances. The decision had lessons for governments: they must be in a position to show that they have properly evaluated the conflicting rights. In this case the UK government was able to persuade the Grand Chamber of the European Court to reconsider the issue and the Grand Chamber struck the balance in a different place, indicating that it did not wish to be overly prescriptive with regard to states’ actions where protection of the environment is concerned. In S v France (1990) it was held that Article 8 applied to circumstances where a nuclear power station was built some 300 metres from the applicant’s home. However, it was also held that the French government had satisfied its obligations by the payment of some monetary compensation to the applicant. A case in which the applicant succeeded was Lopez Ostra v Spain (1994), where Mrs Ostra complained that a waste treatment plant had been built some 12 metres from her home and had not been properly regulated or controlled by the Spanish government. Mrs Ostra’s daughter became ill from toxic fumes from the plant. The Spanish government was held liable, even though it was not itself responsible for the operation of the plant, because of its inadequate regulatory regime which failed to protect the applicant’s home and private and family life. That was perhaps a case where there was a gross failure of regulatory control on the part of the state. Nevertheless, it is again significant as an example of where further intervention by the courts may occur. In Guerra v Italy (1998) the Italian government was held liable for a breach of Article 8 for failing to take action with regard to a chemical plant which was a high risk operation. The ECtHR held that the plant’s location close to private homes meant that there should be adequate information provided about the potential risks of the operation to the private and family lives of the home-owners. The applicant could not show direct injuries arising from the action (or inaction) of the regulators with regard to the chemical plant, despite a long-term history of problems there. (This is very often a problem for plaintiffs in environmental litigation.) But the ECtHR still held that the failure of the (local) government to give the residents essential information to enable them to assess the risks was a breach of Article 8. In Northern Ireland, as already explained, the public already has a right to obtain on request environmental information, under the Environmental Information Regulations 2004. The Guerra decision implies that there is a positive duty on the government to issue information to people likely to be affected by an environmental problem. A minority of the judges in the Guerra case went even further and held that failure to provide information to people could constitute a breach of Article 2 (the right to life) if information were withheld about circumstances which could present a real risk of danger to health and physical integrity. However, some words of caution. The Guerra case involved circumstances which in Northern Ireland could amount to maladministration on the part of the government and perhaps therefore the Ombudsman would have intervened

Environmental Rights

641

(see Chapter 2). A court may not be so anxious to hold against the government where, although there is a problem, the government has been shown to have taken some action when the blame begins to fly after a disaster. Courts will in each case conduct a balancing exercise. In Article 8 of the ECHR, as in some of the other Articles, paragraph 1 confers the right but paragraph 2 then qualifies it in some ways. The government is able to rely on considerations such as national security, public safety, the economic well-being of the country and the protection of health or morals, provided its actions were in pursuit of a legitimate aim, the interference corresponded to a pressing social need and it was proportionate to the aim pursued. These are not necessarily factors which a defendant could rely upon in common law litigation based on the civil wrongs of trespass or nuisance. So plaintiffs should pause for thought before rushing in with a human rights claim.

The Right to a Fair Hearing Article 6 of the ECHR protects the right to a fair hearing. Paragraph 1 provides: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

In the case law of the ECtHR this right has been held to apply to the decisions and determinations of many other decision-making bodies as well as courts. But there are limitations, such as where the decision to be made is held to be a matter of expert or technical evaluation rather than a matter requiring judicial judgment. The UK’s top court considered this issue in a group of cases in England involving the exercise of planning and vesting powers (the so-called Alconbury cases, 2001). The House of Lords held that a government Minister can be both a policymaker and a decision-maker, provided the courts have jurisdiction to conduct a judicial review of the lawfulness and fairness of the decision taken. This process complies with Article 6 even though the court cannot rehear the matter or substitute its own view on the facts. In R v Secretary of State for the Environment Transport and Regions ex parte Alconbury Developments (2001) the House of Lords was firm in holding that it was central to parliamentary democracy that ministers accountable to Parliament should take these planning and vesting decisions rather than the courts. In our increasingly regulated world this is a particularly important point, as many regulatory bodies may be making decisions relating to the civil rights and obligations of business every day. Alconbury suggests that the government’s decision-making powers in this field survived their first major human rights challenge, but Article 6 is still

642

Neil Faris

important in controlling many of the procedures involved in decision-making. As has been explained, an applicant for planning permission who is refused permission may appeal to the Planning Appeals Commission. There is, first, the question whether the Planning Appeals Commission is completely independent of government in accordance with Article 6 of the ECHR. That apart, what is the position of the objectors where property rights (in the wide sense of Article 1 of Protocol 1) may be infringed by the grant of planning permission? An objector may make representations to the Planning Service when the application is being considered, but if the application is granted the objector has no right of appeal. To date the courts have not considered this to be a breach of any ECHR right. The courts take the line that where resolution of ‘primary fact’ is required they will look for procedures akin to the traditional mechanisms for judicial fact-finding: cross-examination, access to documents and a strictly independent decision-taker. If procedures of that kind are not available at the first stage the courts will look to see how far they are provided by any appeal or review system. When the matter involves the application of judgement or the issue of discretion (especially involving policy issues and the interests of others) the courts may be satisfied, for the purposes of Article 6, with a form of inquisition at first instance in which the decision-maker is more of an expert than the judge. In such cases the remedy of judicial review at the appeal or review stage may be enough to satisfy the requirements of Article 6. In Re Stewart (2003) the procedures of the Planning Appeals Commission with regard to appeals were placed under scrutiny, with particular regard to the position of third party objectors. Gillen J held that the ‘informal procedure’ adopted by the Planning Appeals Commission met the criteria of Article 6. The Court of Appeal of Northern Ireland agreed but commented that there could be circumstances where the need to establish the correct facts in a conflict of evidence, or to test the validity of certain types of evidence, would indicate that an informal hearing might not be sufficient to satisfy Article 6. The Court of Appeal also held that it would only be in an extreme case that an objector might be able to mount a legal challenge based on the right to a private and family life under Article 8 of the ECHR or property rights under Article 1 of Protocol 1. Article 6 requires bodies which have final decision-making powers over people’s human rights to be independent and impartial. In such cases there may be issues as to the manner of appointment and terms of reference of the persons sitting in the bodies concerned. It may also be relevant to consider who has the power to remove or re-appoint the decision-makers. The real question in these instances is not the likelihood of an individual with such jurisdiction actually showing any bias in favour of the government, but the perception that this could be the case. If there is such perception then there may be a breach of Article 6, notwithstanding that the individual adjudicator may be proceeding with complete impartiality and every propriety. The position of the Planning Appeals Commission in this regard is still not absolutely clear. It is significant that the power to appoint

Environmental Rights

643

Commissioners no longer rests with the Department of the Environment but with the Office of the First Minister and Deputy First Minister. There is a separate question as to the impartiality of judges. This would have been a novel question before the Human Rights Act 1998, but the legislation now gives the judiciary increased powers of intervention to decide whether or not particular government action is proportionate in any circumstance. If there is litigation about whether a planning decision was properly proportionate, could a question be asked about the judge’s impartiality if he or she has ‘conservationist’ sympathies, manifested perhaps through membership of the Ulster Architectural Heritage Society? Sir Robert Carswell, (as he then was) when Lord Chief Justice of Northern Ireland, alluded to the issues that might arise on ‘such compulsory focus on human rights and international conventions’. He delivered a paper on Human Rights and the Rule of Law at the Fifth Conference of the World Police Medical Officers in Clinical Forensic Medicine in Vancouver, Canada, in August 1999. This was subsequently published in the Journal of Forensic Medicine in 1999. In his paper he suggested: [This impact] may be mirrored in the process of selection of judges and their accountability. Will the public want to look at the record of judges on the Bench or the recorded actions and statements of candidates for appointment? In the English tradition, to which in my jurisdiction we strongly adhere, nothing but merit is taken into account in the appointment of a judge, in the sense of his ability to discharge the judicial function better than any of the persons being considered for appointment. Political affiliations are left out of account and it is assumed in the famous phrase used of a candidate for appointment to the bench in Victorian times, that he has the politics of an equity draftsman. I fear there may be a growing demand for changes in appointment procedures for judges, though I do claim the right to wonder what this will achieve apart from deterring some of the best practitioners from letting their names go forward.

Judicial Review This is not the place for a detailed review of the procedures for applying for judicial review. More is said about the remedy in Chapter 2. The central point for those who wish to challenge environmental or planning decisions is the need to act quickly. As soon as a decision is issued, time will begin to run against an objector who wishes to challenge the decision in a judicial review application to the High Court. The Rules of Court state that the application must be made ‘promptly’ and within three months of the decision being challenged. The High Court has discretion to allow for a longer period in suitable circumstances, but it may also refuse an application even within the three months period if it holds that the objector has not moved sufficiently promptly. This is especially likely to be the case where another party, such as a property developer, has obtained

644

Neil Faris

planning permission. That developer is entitled to proceed with the development on the basis of the planning permission unless an immediate challenge by way of judicial review is made. Accordingly, the High Court may be distinctly unsympathetic to any objector who is not able to bring the matter to court immediately. However, the case law on this issue is now in some flux, because of a decision by the court now known as the Court of Justice of the European Union (CJEU), in a case concerning EU procurement law, that the requirement of ‘promptness’ may infringe the rights of objectors in the procurement process to bring applications for judicial review (see Case C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority, 2010). It may well be that the CJEU will take a similar line in environmental cases, and in particular may have regard to the Aarhus requirements for access to justice. This is also beginning to be considered in judicial review case law in the UK (see, eg R (Buglife: the Invertebrate Conservation Trust) v Medway Council, 2011). In any case, when considering legal proceedings, it is important not to leave it until the adverse decision is made. As soon as you think there is possibly a legal issue connected with the public body’s decision-making process, go to a legal adviser. Remember that a good deal of preparation time may be required for a legal adviser to assemble all the material facts and to identify the relevant legal issues, so the more preparation time, the more likely an effective outcome. In any case, it must always be borne in mind that judicial review is not a means of appealing against a decision with which you disagree, even if there are good grounds for disagreeing with the decision. Judicial review will be successful only if the court is satisfied that there has been a material departure from proper procedures or if the decision is so manifestly unreasonable that no reasonable decisionmaker could have come to it. Of course, there is an emphasis on human rights because of the Human Rights Act 1998 and the human rights provisions of the Northern Ireland Act 1998. Accordingly, the courts have somewhat extended the grounds on which they will allow judicial review so as to include instances where there is an established breach of the human rights legislation. However, the judges are acting quite cautiously in this area. Objectors should certainly not expect any automatic human rights remedy from the courts. There are many injustices which are not human rights violations. Objectors to planning decisions have achieved some significant judicial review success, for example, in cases involving major supermarket sites. But it is noticeable that many of these applications were made by other commercial interests, who were well enough resourced to mount a full-scale challenge. This is not to deny the importance of the judicial review remedy for those on the other side of the environmental and planning fence. Certainly, leading NGOs, such as the Friends of the Earth, the RSPB and the National Trust, have the expertise and resources to mount successful judicial review challenges in appropriate cases.

Environmental Rights

645

Liability for Costs —Protective Costs Orders Anyone who is considering environmental litigation may well be deterred by the sometimes prohibitively high costs of litigation. Indeed, the costs issue should be very carefully considered before embarking on any litigation. Even if you are successful and the court makes an order for costs in your favour, such order will not cover all the costs you will have incurred and for which you will be liable to your own lawyers. Remember also that in environmental cases it may be necessary to obtain the professional services of environmental consultants and that can be an additional substantial cost. In the event that you lose the case, it is likely that the court will make an order against you for the costs of the successful party, and in addition, of course, you will have all your own costs to pay. One option is legal aid, but, while the detail of the legal aid scheme cannot be outlined here, the criteria for obtaining legal aid are increasingly restrictive. Another option, which is at least potentially available in environmental litigation, is to apply for a protective costs order (PCO). If the court is willing to make such an order (and there are various terms in which the order may be made) it means that your liability for the costs of the other party, in the event that you lose the case, are ‘capped’ to an amount specified in the order, or the Court could determine that you would not face any liability at all for the other party’s costs. Of course, the detriment may be that the court will also hold that in the event you are successful, you will obtain only a ‘capped’ amount of costs from the other party or, perhaps, that neither party will obtain costs from the other party. The Court of Appeal of England and Wales set out the key principles in the leading case of R (Corner House Research) v Secretary of State for Trade and Industry, 2005. These state that a PCO may be made at any stage of the proceedings on such terms as the court thinks fit provided it is satisfied that: — — — —

the issues raised are of general public importance; the public interest requires that those issues should be resolved; the applicant has no private interest in the outcome of the case; having regard to the financial resources of the parties it is fair and just to make the order; and — if a PCO is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing. The principles add that if those acting for the applicant are doing so pro bono, this will be likely to enhance the merits of the application for a PCO, but it remains for the court, in its discretion, to decide whether it is fair and just to make the order in the light of all the considerations. The principles were considered and approved by the Lord Chief Justice of Northern Ireland in Thompson’s (Ciara) Application, 2010. The courts acknowledge the influence of the provisions of the Aarhus Convention in this regard. In particular, Article 9 of that Convention provides that procedures for access to justice shall be fair, equitable, timely and not

646

Neil Faris

prohibitively expensive. The Aarhus Convention, of course, applies only in cases involving access to environmental justice. A considerable amount of case law has developed on the application of the Corner House principles. It is not possible to summarise this here and it is likely to develop further, so readers of this chapter should seek further up-to-date advice before venturing into any litigation. There have been several developments in regard specifically to access to environmental justice: — In Commission v Ireland (2009) the ECJ held that the discretion of the Irish Court after the event not to award costs against the applicant was not sufficient to comply with the Aarhus Convention requirement that costs should not be prohibitively expensive. — The meaning of ‘prohibitively expensive’ has recently been considered by the Supreme Court in London (following a reference to the CJEU) in Edwards and anor (on the Application of the Environment Agency & ors (No 2)(2013). In the CJEU proceedings Advocate-General Kokott had advised that: ‘It would not be compatible with wide access to justice if the considerable risks in terms of costs are, as a rule, liable to prevent proceedings.’ (para 40) The Supreme Court decided in the particular circumstances that imposing on the applicant for judicial review the liability to pay £25,000 towards the costs of the public bodies (because the judicial review application had been lost) could not said to be unreasonably high in the circumstances of that case. — In Northern Ireland in The Alternative A5 Alliance’s Application (2012) Horner J had already considered as persuasive the opinion of Advocate-General Kokott in Edwards. He ordered that the liability of the applicants to the potential costs of the Department of Regional Development (if they lost the judicial review) be capped at £20,000. It was interesting, and encouraging for applicants, that he did not order any cap on the costs payable by the DRD if it lost the case. — Then for compliance with the Aarhus Convention requirements the Department of Justice issued the Costs Protection (Aarhus Convention) Regulations (NI) 2013. These provide that: — the applicant’s liability for the costs of the respondent public body is limited to £5,000 in case of an individual and £10,000 where the applicant is an organisation (in cases where the court has ordered the applicant to pay the public body’s costs); — the public body’s liability for the applicant’s costs is limited to £35,000 (in cases where the Court ordered the public body to pay the applicant’s costs); and — a ‘pro bono costs order’ to be made by the courts where an applicant is represented ‘pro bono’ (meaning that the lawyers have agreed to act without fees) in such amount as the court considers just. Any such pro bono monies will be paid to the Northern Ireland Lawyers Pro Bono Unit which is a registered charity.

Environmental Rights

647

However, it should be noted that: — The 2013 Regulations apply only in cases where access to the environmental justice provisions of the Aarhus Convention apply. — You will still have to make provision to pay your own legal costs even if protected by a PCO by a cap on your liability for the public body’s costs. — Because of the great complexity of this area of law, legal advice is essential before you decide to proceed.

Practical Tips for Objectors It may be useful to conclude with some practical tips for objectors who face the challenge of wishing to oppose a major new development which they believe will have adverse environmental consequences for them, their families or their neighbourhood. Often the forces ranged against the objector appear almost insurmountable. In the case, for instance, of a major planning application, the applicant for the planning permission is likely to be a well-financed property developer or a large corporation. The developer of any major project will have an array of expert help from lawyers, architects, engineers and planning and environmental consultants. It will have produced a large and impressive environmental statement which will certainly appear to deal with all environmental issues. It will appear that the developer has all the resources and commitment to go through the sometimes lengthy planning inquiry process. The objector or objecting group, in contrast, is likely to have few resources and perhaps little experience of dealing with matters of this type. Such ‘ordinary people’ may also, unfortunately, have little or no access to the relevant legal and other professional advice. Consequently, the objectors’ reaction may either be to give up the attempt altogether or to concentrate solely on activities such as street protests, publicity and perhaps other forms of direct action. Certainly, within the law, local objectors do need to raise local support and assistance from further afield. So a publicity and consciousness-raising campaign is essential. The next stage, as indicated earlier, is information gathering. Much of this can be done by lay people, with expert help and guidance where necessary. But this stage does take time and patience. The objectors should try to choose from their active supporters those who have expertise, or at least a likely aptitude, for dealing with officialdom. Sometimes objectors are disheartened because the developer’s side has an eminent Queen’s Counsel appearing at the relevant inquiry. The objectors then feel that they must also obtain similar representation to achieve success. Almost certainly an experienced barrister is the best professional advocate for a client if the client can afford the professional fees, which are likely to be high, especially in the case of a long-running inquiry. Nevertheless, the best use will only be made of such advocacy if the groundwork has been thoroughly prepared in advance.

648

Neil Faris

One option is to concentrate professional help on a particular ‘big issue’. The other issues can then be handled at the inquiry by the objectors themselves. Sometimes this can be quite effective. In almost every case it is worthwhile to take preliminary legal and other professional advice at an early stage. This need not be expensive for preliminary professional views. Such initial advice can be extremely helpful in assisting the objectors to best plan their case and make best use of resources. Those objecting to a proposal need, as much as the developer of a project, an overall strategy from the earliest opportunity. Bear in mind that lawyers need considerable time to assemble all the material information and to consider the relevant legal issues. A successful strategy should involve consideration of what resources are available to the objectors and how such resources can be best employed. Almost certainly substantial fundraising will be necessary, but a local community may have access to some voluntary help, for instance from recently retired professional people in the neighbourhood. Some organisational help, or at least advice, may be available from organisations such as the Environmental Law Foundation and the PILS Project. Local NGOs, such as Friends of the Earth (NI), may themselves wish to take up the case and at least may be willing to provide helpful information. Consider also whether applying for a protective costs order might be a useful tactic in the litigation. The strategy can then be developed to build up the information available to the group through intelligent use of environmental rights such as the right to information, the environmental impact assessment process and the Habitats Directive. By these means the group can begin to position itself so that the professional consultants acting for the developer begin to react to its (reasonable) position. Sometimes objectors can be tempted to ‘wage war’ on the planning officials and other civil servants and to treat them as ‘the enemy’. This is due to inexperience or frustration. The Department of the Environment should at least now provide full access to documents under their ‘Open File’ policy. A developer can sometimes be required to provide further environmental information and the planning process can be delayed until that it is produced. This can certainly be a very time-consuming process for the objectors as well as for the developer. There is a temptation for the objector group to lose patience with the process. However, in reality it is unlikely there will be any ‘knock-out blow’. It will rather be the persistent attention to detail that is likely to gain progress for the objector group.

Environmental Rights

Useful Contacts Arena Network Northern Ireland c/o Business in the Community NI Bridge House Paulett Avenue Belfast BT5 4HD tel: 028 9046 0606 www.bitc.org.uk/northern_ireland Department of the Environment, Food and Rural Affairs Noble House 17 Smith Square London SW1P 3JR tel: Defra Helpline 08459 33 55 77 www.defra.gov.uk Environment Agency National Customer Contact Agency PO Box 544 Rotherham S60 1BY tel: 03708 506 056 www.environment-agency.gov.uk Environmental Law Foundation 2-10 Princeton Street London WC1R 4BH Helpline: 0330 123 0169 www.elflaw.org Environmental Policy Division Department of the Environment (NI) 8th floor, Goodwood House 44–58 May Street Belfast BT4 1NN tel: 028 9025 4726 www.doeni.gov.uk Friends of the Earth Northern Ireland 7 Donegall Street Place Belfast BT1 2FN tel: 028 9023 3488 www.foe.co.uk/northern/northern_ireland_index_html

649

650

Neil Faris

Northern Ireland Environment Agency Klondyke Building Cromac Avenue Gasworks Business Park Lower Ormeau Road Belfast BT7 2JA tel: 0845 302 0008 www.doeni.gov.uk/niea Northern Ireland Environment Link 89 Loopland Drive Belfast BT6 9DW tel: 028 9045 5770 www.nienvironmentlink.org Planning Appeals Commission Park House 87–91 Great Victoria Street Belfast BT2 7AG tel: 028 9024 4710 www.pacni.gov.uk Planning NI Planning and Local Government Group Department of the Environment (NI) Millennium House 17–25 Great Victoria Street Belfast BT2 7BN tel: 028 9041 6700 www.planningni.gov.uk Public Interest Litigation Service Project (PILS) Arthur House 41 Arthur Street Belfast BT1 4GB tel: 028 9044 6201 www.pilsni.org

FURTHER READING

A huge amount of material concerning human rights in Northern Ireland is available on the internet, and readers with access to university libraries will be able to access many relevant articles in legal journals by searching appropriate databases. This section simply mentions some leading books, chapters and articles which directly supplement the information provided in this book. Readers should also check the websites of the various organisations listed in the ‘Useful Contacts’ section at the end of each chapter in this book.

International Human Rights Law Alison Bisset, Blackstone’s International Human Rights Documents, Oxford University Press, Oxford, 9th edn, 2014 Rhona Smith, Textbook on International Human Rights, Oxford University Press, Oxford, 6th edn, 2014 Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran, International Human Rights Law, Oxford University Press, Oxford, 2nd edn, 2014 David Harris, Michael O’Boyle, Ed Bates and Carla Buckley, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, Oxford University Press, Oxford, 3rd edn, 2014 Bernadette Rainey, Elizabeth Wicks and Clare Ovey, Jacobs, White and Ovey: The European Convention on Human Rights, Oxford University Press, Oxford, 6th edn, 2014 Philip Leach, Taking a Case to the European Court of Human Rights, Oxford University Press, Oxford, 3rd edn, 2011

Human Rights Law in the United Kingdom Merris Amos, Human Rights Law, Hart Publishing, Oxford and Portland, 2nd edn, 2014 Richard Stone, Textbook on Civil Liberties and Human Rights, Oxford University Press, Oxford, 10th edn, 2014 Brice Dickson, Human Rights and the United Kingdom Supreme Court, Oxford University Press, Oxford, 2013 David Hoffman and John Rowe, Human Rights in the UK, Pearson Education Ltd, Harlow, 4th edn, 2013 John Wadham, Helen Mountfield, Elizabeth Prochaska, Christopher Brown, Blackstone’s Guide to the Human Rights Act 1998, Oxford University Press, Oxford, 6th edn, 2011

652

Further Reading

Human Rights Law in Northern Ireland Les Allamby and Jonathan Simpson, Rights in Progress: A Guide to the European Convention on Human Rights and the Human Rights Act, Law Centre (NI), Belfast, 4th edn, 2013 Northern Ireland Human Rights Commission, Annual Statements on Human Rights in Northern Ireland (2012, 2013 and 2014), available at www.nihrc.org Ronagh McQuigg, ‘A “very limited” effect or a “seismic” impact? A study of the impact of the Human Rights Act 1998 on the courts in Northern Ireland’ [2010] Public Law 551–64 Brice Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland, Oxford University Press, Oxford, 2010 Brice Dickson, ‘Northern Ireland’ in Anthony Lester, David Pannick, and Javan Herberg, Human Rights Law and Practice, Butterworths, London, 3rd edn, 2009, ch 6

Victims, Police Powers and Prisoners Clive Walker, Blackstone’s Guide to the Anti-Terrorism Legislation, Oxford University Press, Oxford, 3rd edn, 2014 Keir Starmer, Human Rights and Victims: The Untold Story of the Human Rights Act [2014] European Human Rights Law Review 215 Criminal Justice Inspector Northern Ireland, The Past – A Review of the Cost and Impact of Dealing with The Past on Criminal Justice Organisations in Northern Ireland, 2013 Michael Zander, The Police and Criminal Evidence Act 1984, Sweet and Maxwell, London, 6th edn, 2013 Committee on the Administration of Justice, Human Rights and Dealing with Historic Cases – A Review of the Office of the Police Ombudsman for Northern Ireland, CAJ, Belfast, 2011 Criminal Justice Inspector Northern Ireland, The Independence of the Office of the Police Ombudsman for Northern Ireland, 2011 and 2013 Stephen Livingstone, Tim Owen and Alison Macdonald, Prison Law, Oxford University Press, Oxford, 4th edn, 2008 Police Ombudsman for Northern Ireland, Annual Reports, available at www.policeombudsman .org

Immigration, Marches, Free Speech, Information and Privacy Gina Clayton, Textbook on Immigration and Asylum Law, Oxford University Press, Oxford, 6th edn, 2014 Child Poverty Action Group, Benefits for Migrants Handbook, CPAG, London, 6th edn, 2014

Further Reading

653

John Wadham, Kelly Harris and George Peretz, Blackstone’s Guide to the Freedom of Information Act 2000, Oxford University Press, Oxford, 5th edn, 2013 David Mead, The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Era, Hart Publishing, Oxford and Portland, 2010 Richard Clayton and Hugh Tomlinson, Privacy and Freedom of Expression, Oxford University Press, Oxford, 2nd edn, 2010 House of Commons Select Committee on Culture, Media and Sport, Press Standards, Privacy and Libel, 2nd Report 2009–10, HC 362-I, The Stationery Office, London, 2010 Peter Carey, Data Protection: A Practical Guide to UK and EU Law, Oxford University Press, Oxford, 2009 House of Lords Select Committee on the Constitution Surveillance: Citizens and the State, 2nd Report of 2008–09, HL Paper 18-I, The Stationery Office, London, 2009

Equality, Discrimination and Mental Disorder Aileen McColgan, Discrimination, Equality and the Law, Hart Publishing, Oxford and Portland, 2014 Bob Hepple, Equality: The New Legal Framework, Hart Publishing, Oxford and Portland, 2nd edn, 2014 Richard Jones, Mental Health Act Manual, Sweet and Maxwell, London, 16th edn, 2013 John Wadham, David Ruebain, Anthony Robinson, Susie Uppal (eds), Blackstone’s Guide to the Equality Act 2010, Oxford University Press, Oxford, 2nd edn, 2012 Sandra Fredman, Discrimination Law, Clarendon Press, Oxford, 2nd edn, 2011 Brian Doyle, Disability Discrimination: Law and Practice, Jordan Publishing, Bristol, 6th edn, 2008 Equality Commission for Northern Ireland, ‘Age discrimination in employment – guide for employers’ (2006) and Addendum (2011), available at www.equalityni.org Equality Commission for Northern Ireland, ‘Sexual Orientation Discrimination in Northern Ireland: The Law and Good Practice’ (2004), available at www.equalityni.org Bob Osborne and Ian Shuttleworth (eds), Fair Employment in Northern Ireland: A Generation On, Blackstaff Press, Belfast, 2004 Equality Commission for Northern Ireland, Casebook of Decisions and Settlements, annual (now website only)

Family, Children and Education Ian Wise and others, Children in Need: Local Authority Support for Families and Children, Legal Action Group, London 2nd edn, 2013 Laura Lundy, Ursula Kilkelly, Bronagh Byrne and Jason Kang, The UN Convention on the Rights of the Child: A Study of Legal Implementation in 12 Countries, UNICEF and Queen’s University Belfast, 2012

654

Further Reading

Volunteer Now, Our Duty to Care – Principles of Good Practice for the Protection of Children and Young People, 2011 Shazia Choudhry and Jonathan Herring, European Human Rights and Family Law, Hart Publishing, Oxford and Portland, 2010 Jane Fortin, Children’s Rights and the Developing Law, Cambridge University Press, Cambridge, 3rd edn, 2009 Children’s Order Advisory Committee, Best Practice Guidance: available at www.courtsni. gov.uk

Employment, Housing, Social Security and the Environment Child Poverty Action Group, Welfare Benefits and Tax Credits Handbook 2014–15, CPAG, London, 2014 Peter Wallington (ed), Butterworths Employment Law Handbook, Butterworths, London, 21st edn, 2013 Jessie Hohmann, The Right to Housing: Law, Concepts, Possibilities, Hart Publishing, Oxford and Portland, 2013 Labour Relations Agency, Code of Practice on Disciplinary and Grievance Procedures, 2011, available at www.lra.org.uk Donald Anton and Dinah Shelton, Environmental Protection and Human Rights, Cambridge University Press, Cambridge, 2011 James Maurici, ‘Aarhus and Access to Justice’ [2011] Judicial Review 253 Department for Employment and Learning, Union Members: Rights of Members and Non-Members, 2011, available at www.delni.gov.uk Eoin Rooney and Mira Dutschke, ‘The Right to Adequate Housing: A Case Study of the Social Housing Budget in Northern Ireland’ in Aoife Nolan, Rory O’Connell and Colin Harvey (eds), Human Rights and Public Finance, Hart Publishing, Oxford and Portland, ch 9 Robin Allen, Anna Beale and Rachel Crasnow, Employment Law and Human Rights, Oxford University Press, Oxford, 2nd edn, 2007

INDEX

Introductory Note References such as ‘178–9’ indicate (not necessarily continuous) discussion of a topic across a range of pages. Wherever possible in the case of topics with many references, these have either been divided into sub-topics or only the most significant discussions of the topic are listed. Because the entire work is about ‘Northern Ireland’ and ‘human rights’, the use of these terms (and certain others which occur constantly throughout the book) as an entry point has been restricted. Information will be found under the corresponding detailed topics. Aarhus Convention 629–30, 633, 645–7 absolute discharge 477 absolute privilege 215 academic ability 484, 490–1, 493 access to a lawyer 76–7, 79 accidents 13, 16–17, 37, 163, 166, 539 accommodation 135, 370, 417–18, 463–7, 567–8, 571, 573, 590–3, 609–10 secure 466–7, 469, 592 temporary 568, 590, 592–3 accomplices 86–7, 89, 226 evidence 86, 89 accredited qualifications 508 accused persons 9, 68, 84–7, 90–1, 420 as witnesses 86 acquittal 10, 86, 133, 252 adjustments, reasonable, see reasonable adjustments administrative law 228 admission of liability 64, 115 admissions 69–70, 74, 107–8, 378, 414–15, 421, 489–93, 496, 511–12 criteria 489–93 numbers 485, 489 adoption 2, 12, 305, 324, 432, 438–9, 533–4, 543, 602 adoptive parents 432, 438–9 adverse effect 47, 73, 88, 322, 351, 364, 502, 637 adverse impact 271, 277–9, 330, 392, 407 advertising 219–20 advice centres 104 independent 567, 574 advisers legal 41, 80, 85, 126, 128, 644 personal 468, 617 professional 426, 636 affirmative action 264, 269, 273, 323–7 in relation to redundancy 325–6 affray 199–200 age 60–1, 265–6, 306–7, 399–407, 436–44, 467–71, 477–9, 486, 615 children 463, 465, 475, 487–8, 501

compulsory school age 483, 485–6, 488, 499, 524 of consent 446 discrimination 266, 399–407 direct 401–3 groups 404, 407, 464 pensionable 598, 606, 608, 614–15 working 595, 605, 609, 620 Age Regulations 400–7 agency workers 521–2, 524, 536 agents 96–7, 101, 566, 581, 586–7 airports 33, 37–8, 43, 75, 181 alcohol, refusal to surrender 201 allowances attendance 153, 598, 605, 616–17 bereavement 598, 601, 617, 621 carer’s 153, 598, 601, 616–17, 621 educational maintenance 510 guardian’s 154, 597, 603 income-related employment and support 597, 600 local housing 609–10 personal 607, 610, 617–18 severe disablement 153, 535, 575, 606, 608 widowed parent’s 575, 598, 601, 617 alternative accommodation 563, 567, 573, 592 Amnesty International 6, 27, 221 anti-discrimination legislation 263–5, 267, 271, 282, 291, 302, 313, 330–1, 363; see also discrimination anti-racism legislation 329–30, 342–3 anti-social behaviour 182, 252, 568 orders (ASBOs) 282 anti-terrorism law 31–2 power to arrest 51–3 power to detain 56–60 power to enter and search premises 47–8 power to stop and question 36–7 power to stop and search people 41–3 vehicles 44–5 questioning under 75–6

656

Index

appeal hearings 172–3, 419, 544 appeal rights 169, 501, 626 appeal tribunals 16, 489–90, 493, 507–8, 511 appeals 9–10, 13–14, 151–3, 170–5, 255–60, 356–9, 480, 501–4, 642 appropriate person 123–4 army 31, 33, 35, 37, 39, 47, 53, 61–5, 334; see also soldiers complaints against 64 powers 31–64 arrears 298, 563, 567, 574–5, 609, 611 mortgage 563–4, 572 rent 13, 574, 586, 611 arrest 32, 34–5, 38, 40–1, 46–58, 61–2, 67, 75, 411 for breach of the peace 50–1 citizen’s 51 powers, see powers, of arrest unlawful 50, 115 with warrant 49–50 arrested persons 40, 50, 53–5, 59, 71, 77 ASBOs (anti-social behaviour orders) 282 assault 38, 41, 50, 60, 62, 64, 86, 98, 132–3 assembly 4, 24, 180, 183–4, 186–8, 190, 192, 198, 200 freedom of 4, 180, 184, 186–8, 190, 192, 200, 243 Assembly Ombudsman 23–5 assessment 414–15, 456, 459–60, 494–5, 497–8, 500–1, 607–8, 633–4, 637 child assessment orders 459–60 environmental impact 631–4, 648 phase 607–8 assistance 15, 18, 26, 86–8, 270, 322, 509, 518, 591–2 financial 15, 18, 565–6 legal 79, 384 assistant chief constables 41–2, 44, 57, 79, 110–14, 254 associative disability discrimination 355–7 asylum 7, 147–50, 152, 158–61, 172–5, 228, 445, 447–8, 510 applications 158, 448 children of asylum seekers 510 seekers 148, 159, 174, 447–8, 510 attendance allowance 153, 598, 605, 616–17 audio-taping 72 audits of inequalities 279–80 authorised persons 63, 418, 425, 460 automatic deportation 170 automatic unfair dismissal 545, 549–50 autonomy 246, 409–10, 419, 422 personal 207, 245–6, 409, 419 auxiliary aids 365, 367, 371, 374, 377 babies 119, 134, 305, 351, 530–3, 535, 602 back pay 298 bail 53, 171, 470–1 balance of probabilities 64, 113–15, 215, 404

barristers 12, 15–16, 18, 313, 339, 647 BBC 218, 252, 260, 272 behaviour anti-social, see anti-social behaviour disorderly 197, 204, 224 indecent 196, 221, 444 likely to occasion a breach of the peace 197 oppressive 98–9 riotous 197–8 Belfast City Council 185, 212, 228, 252 belief 89, 99, 266, 283, 288, 312, 384–6, 392–3, 396 political 327, 517 reasonable 203, 528 religious, see religious belief benefit year, relevant 606, 616–17 benefits child 153, 597–8, 602–3, 617, 621, 626 council tax 153, 596 housing 153, 581, 587, 595–6, 598, 609–10, 612, 617, 621 incapacity 154, 531, 535, 575, 608 means-tested 510, 596, 598, 601, 603, 609, 620–1 pension 296, 307 bereaved partners 157 bereavement allowance 598, 601, 617, 621 best practice 1, 49, 237, 278, 578 biometric information 149, 250 blasphemy 222 boards of governors 484, 486, 490, 493–4, 498, 503, 511 bodily integrity 247 body searching 132–3 bomb hoaxes 211 border areas 38, 62 border controls, port and 37, 56, 58 breach of the peace 45–6, 50–1, 188, 197–9, 203–4, 212 arrest for 50–1 powers to prevent 203 British citizens 147–8, 156–8, 164, 168–70 broadcasting 207–8, 210, 218, 253 broadcasting bans 219 budgeting loans 566, 587, 600, 611–14, 621 buildings 47, 63, 202–3, 270, 360, 371, 565, 567, 632; see also premises public 181–2, 202, 212 burden of proof 142, 292, 300, 320–1, 330, 358, 416, 637 CAIUs (Child Abuse Investigation Units) 457 CAJ (Committee on the Administration of Justice) 6–8, 21, 94, 105, 271 candidates 227, 355, 555, 643 capacity 24, 72, 152, 158, 412, 459, 563 mental 355, 413–14, 419, 422, 424 care 409–10, 412–14, 419–21, 426–7, 454–6, 460–4, 468–9, 535–7, 588–9

Index community care grants 566, 611, 613–14, 621 component of disability living allowance 601, 603–4 duty of 132, 588 health 125, 131–2, 137, 331, 413, 455 mental health 410, 413 orders 437, 460–2, 464, 488 proceedings 453, 461–2 provision of 536–7 psychiatric 417, 420 reasonable 216, 520, 538, 540 social 246, 347, 410, 426 care homes 387, 613 carers 457, 564, 570, 598–9, 601, 607, 611, 617–18, 624–5 carer’s allowance 153, 598, 601, 616–17, 621 Catholic maintained schools 341, 484, 507 Catholic marriages 241 Catholic teachers 318–19 Catholics 98–9, 241, 263, 311–12, 314–15, 317–18, 323–4, 484, 507 CCEA (Council for the Curriculum, Examinations and Assessment) 380, 494–6, 511 CCMS (Council for Catholic Maintained Schools) 341, 484, 486, 506–7, 511 CCTV (closed-circuit television) 248–9, 252–3 CEDAW (Committee on the Elimination of Discrimination against Women) 267, 287, 451 cellular samples 252 CERD (Committee on the Elimination of Racial Discrimination) 267, 281, 329, 451 Certification Officer 518, 554–6 chief constables 50, 52–4, 61–2, 94–7, 100–1, 108–12, 191, 201–2, 338 assistant 41–2, 44, 57, 79, 110–14, 254 Chief Surveillance Commissioner 255 child abuse 456–7 Child Abuse Investigation Units (CAIUs) 457 child benefit 153, 597–8, 602–3, 617, 621, 626 child protection 218, 222, 436, 445, 456, 459, 466 child tax credit 153, 510, 602–3, 612–13, 617–21, 626 childminders 454–5 children 157–9, 436–48, 451–80, 486–508, 510–13, 532–7, 601–4, 617–20, 622–5 age 463, 465, 475, 487–8, 501 of asylum seekers 510 dependent 163, 570, 591 eligible 467–8 evidence 457–8 health 453, 460, 465 and immigration control 161 involving 472, 475 minor 436, 438 parents, see parents of parents with limited leave to remain as a partner or parent 157–8 Protestant 491 rights 8, 25, 376, 451–80, 513

657

of sufficient understanding 459–60, 462 welfare 161, 436, 453, 456, 459–61, 464, 468–9, 488 children’s homes 454–5, 464–6 Children’s Law Centre 282, 451–2, 454, 456, 458, 460, 462, 464, 466 CHISs (covert human intelligence sources) 41, 101, 103, 254 citizens 5, 77, 81, 162, 164, 202, 250, 254, 416–17 citizen’s arrests 51 citizenship 148, 161, 168, 447 Irish 148, 169, 447 civil courts 12, 14, 47, 52, 298, 458, 524, 541 civil legal aid 15 civil partners 153, 155–7, 163–5, 167–8, 389–90, 395–6, 432–3, 438, 569–70, 598, 601, 614–15 civil rights 120, 263, 431, 641 CJEU (Court of Justice of the EU) 19, 286, 291, 293–8, 303–5, 307–8, 390, 400–2, 644 closed-circuit television, see CCTV clothes 40, 54, 129, 343 prisoners 129 clothing 129, 201, 250, 466, 614 codes of practice 31–3, 36, 38, 41–2, 71–7, 324, 347–9, 367, 410–12, 498–500, 502, 544–5, 555–6, 558 coercive powers 205, 250 cold weather payments 613, 621 collective agreements 307, 519, 527, 552 and sex discrimination 307–8 commercial expression 208, 220 commercial interests 237, 644 Commission for Racial Equality for Northern Ireland 264, 269, 331, 342 Commission for Victims and Survivors 26 Commissioner for Children and Young People 25, 399 Commissioner for Complaints 23–5, 125, 578 Commissioner for Older People 7, 26, 269, 399 Committee on the Administration of Justice, see CAJ Committee on the Elimination of Discrimination against Women (CEDAW): see CEDAW Committee on the Elimination of Racial Discrimination, see CERD common law 67, 69, 73, 80, 88, 90, 410, 414, 422 community care grants 566, 611, 613–14, 621 community impact statements 11 Community Safety Partnerships 11, 538 community service orders 476 companies 1, 214, 240–1, 303, 316, 338, 631 comparators 293–4, 298, 304 Compassionate Temporary Release (CTR) 137 compensation 12–14, 21, 41, 50, 56–7, 63–4, 544–5, 571, 575–7 complaints against police 115 for over-holding 56 for personal injuries and property damage 14 competence 3, 330, 379–80, 465

658

Index

competency 175, 380, 422, 463 complainants 24–5, 97, 99–100, 102–7, 112–15, 282–3, 320–1, 333, 337–8 cooperation by 105–6 complaints 3, 23–6, 64, 219–20, 282–3, 338, 510–11, 553, 578 against army 64 against police 93–117 definition 96 disclosure and right to be kept informed 104–5 how to make 103 informal resolution 106–7 investigation 108–10 legacy cases 100–1 mediation 107–8 outcome 111–15 reports 116 research 115–16 types 98–100 of discrimination 312, 327, 518 formal 224, 282, 578 individual 93, 95, 364 procedures 122, 238, 466, 510, 578 internal 24, 122, 578 of unfair dismissal 541, 556 compulsory detention 414–15 compulsory school age 483, 485–6, 488, 499, 524 conciliation, process 378–9 conciliation services 375 independent 378–9 conditional discharges 475, 477 conditions of employment 356, 520, 522, 531, 553 Conduct Regulations 110–11, 113 confessions 67–70, 73–5, 77 confidentiality 95, 113, 186, 225–6, 256, 337, 377, 418 conflict-related convictions 142, 320 consent 38, 59–61, 251, 253, 371–2, 413–15, 423–5, 439, 443 age of 446 informed 368, 473 patients 422, 424 written 131, 371, 571, 576 conspiracy 103, 179, 209 consultants, environmental 634, 645, 647 consultation 79–80, 268–9, 288, 386, 545, 549–50, 553, 571, 634–5 contact orders 437, 460 contempt of court 84–5, 223–5, 478 continuous employment 520, 528, 546, 602 contract workers 313, 339, 355 contracts 13, 297–8, 517, 519, 523–4, 535, 540–1, 548–9, 551–3 of employment 298, 306–7, 333, 519–20, 522, 535, 540, 542, 548 fixed-term 304–5, 524, 542

contribution conditions 598, 616 contributory-based ESA 598, 606–8 contributory jobseeker’s allowance (JSA) 597–8, 616–17, 621 control orders 33, 227 controlled integrated schools 485, 496 controlled schools 483–4, 496, 507 Convention rights 5, 20–2, 77, 180, 220, 224, 256, 512 convicted persons 88, 120–1, 229, 420 convictions 9–10, 20, 87–8, 91, 121, 140–2, 170, 320, 471–4 conflict-related 142, 320 copyright 218 corporal punishment 25, 247, 440, 466, 505 correspondence 103, 121, 126–7, 186, 244, 248, 254, 412, 431 respect for 248 corroborative evidence 35 costs 297, 368, 371, 375, 509–10, 566, 612, 614, 645–6 housing 562–3, 581, 607–10, 614, 616–18, 623 public bodies 646–7 Council for Catholic Maintained Schools, see CCMS Council for the Curriculum, Examinations and Assessment, see CCEA council property 333, 345 council tax benefit 153, 596 county courts 9, 12–14, 112, 317, 341, 343, 375, 480, 593 judges 45, 58, 480, 573 couples 156, 164, 435, 438, 446–7, 534, 602–3, 614, 616–25 married 160, 389–90, 438 same-sex 389–91, 395, 432–3 unmarried 26, 438 Court of Appeal 9–10, 13, 16, 38, 69–70, 74, 77–8, 112, 126, 174, 192, 197, 199–200, 256, 260, 259, 283–4, 293, 296, 300–1, 332–3, 341–2, 351, 356–9, 442–3 Court of Justice of the EU, see CJEU court orders 224–5, 239, 426, 439–40, 570, 572, 580 court reporting, restrictions on 224–5 covert human intelligence sources, see CHISs covert surveillance 80, 245, 253, 255 Criminal Cases Review Commission (CCRC) 10, 70 criminal convictions, see convictions criminal courts 9–10, 21 criminal damage claims 14 criminal injury 14 criminal justice system 9, 11, 345–6, 468 and racial discrimination 345–7 criminal legal aid 15 criminal libel 216, 221 criminal proceedings 15, 17, 73, 75, 79, 106, 111–12, 458, 473–4 criminal trials 10, 112, 186, 225 crisis loans 566, 587, 611, 613–14, 621

Index cross-examination 83–5, 90–1, 113, 458, 475, 642 Crown Court 9–10, 112, 458, 474–5 CTC, see child tax credit cultural rights 2, 281, 287, 329, 451 curriculum 377, 494, 496–7, 502, 508, 511 statutory 497, 508–9 Curriculum Complaints Tribunal 496–7 custodial orders 477–8 custodial sentences 61, 471, 475, 477 custody officers 40, 54, 71, 76, 79, 98, 469–70 custody records 34, 55–6, 75 custody visitors 56, 59, 76 D notices 227 DARS (Dispute Avoidance and Resolution Service) 500, 503–4 data subjects, right to stored data 240–1 databases, personal and biometric 249–50 day care 454 DBS (Disclosure and Barring Service) 141, 456 death threats 105, 219 deaths 16–17, 102, 105, 108–9, 239, 241, 536, 568–70, 582 debts 13, 156–7, 574, 614 decision-makers 160, 274, 641–2 deductions 525, 543, 555–6, 574–5, 597, 609, 611–13 unauthorised 519, 555 unlawful 517, 524–5 deemed disabilities 350–1 defamation 213–16, 243–4 defences to 215–16 injunctions 216 proving 214 defences 78–9, 82–3, 214–16, 226–7, 295–7, 316, 333–4, 339–40, 440 genuine material factor 295, 298 justification 356, 359, 368–9, 372, 376–7, 379, 402 partial 440 public interest 214, 226 statutory authority 320 degrading treatment 19, 69, 75, 159, 410, 441, 504, 513 DEL, see Department for Employment and Learning democracy 1, 168, 188, 251, 286 democratic society 179, 187–9, 192, 207–8, 215, 233, 243–4, 252, 431 Department for Employment and Learning (DEL) 305, 518, 545, 550, 552, 554–6, 558, 617, 624 Department for Social Development (DSD) 389, 425, 561, 569, 576–8, 590, 596–7, 605, 621 Department of Education 483, 485, 487–9, 491, 494, 496–7, 503–4, 507–9, 511 Department of Health, Social Services and Public Safety (DHSSPS) 15, 131, 141, 246, 420, 426, 452, 454–5, 467 deportation 161, 167, 169–72, 174 automatic 170

659

deposits 369, 562, 576, 584, 586–8, 632 deprivation of liberty 203, 413, 478 designated flag days 185 designated public authorities 271, 276, 278–80, 282 designated rural areas 565 designation orders 272 detained patients 131, 416, 424, 427 detained persons, see detainees detainees 7, 32, 34–5, 56–60, 67–8, 71, 76–7, 79, 171 rights 57 detention 32–4, 52, 54–9, 67–8, 75–7, 411–17, 419–20, 477–9, 506 centres 76, 448 immigration 342, 388 terrorist 76 compensation for over-holding 56, 59 compulsory 414–15 information, legal advice and visits 55–6 permitted periods 55, 58–9 police 73, 469 power to retain fingerprints and DNA profiles 60–1 power to take photographs and fingerprints 59 power to take samples 60 reviews of 54–5, 57 visits 59 detriment 302–3, 313, 315, 355–6, 370, 522–3, 525–6, 528–9, 552 developers 633–8, 644, 647–8 development 217, 263–5, 383–4, 395–6, 452–3, 460–1, 485, 631–4, 637–9 of international human rights law 1–3 personal 245–6, 414 DHSSPS, see Department of Health, Social Services and Public Safety dignity 257, 286–7, 303, 316, 362, 386, 393–4, 403, 405–6 Diplock Commission 75 direct discrimination 299, 313–14, 327, 331–3, 337, 355–6, 387–91, 393, 400–1 age 401–3 claims 387, 389 definition 388, 400–1, 406 disability 356–7 direct effect 166, 286, 395, 406, 431 Director of Public Prosecutions, see DPP disability 2–3, 99, 263–6, 349–57, 359–61, 379–81, 400–1, 612–13, 616–17 definition 349, 354 discrimination 265, 349–81, 388, 502 associative 355–7 direct 356–7 in employment 354–65 further and higher education 378–9 GQBs 380–1 law 381, 400, 406 primary and secondary education 375–8 public authority duties 372–3

660

Index

in relation to goods, facilities, services and premises 365–72 transport 373–5 unlawful 378, 380 living allowance, see DLA mental 409, 412, 436, 619 past 351, 354 reasonable adjustments, see reasonable adjustments sensory 351 severe, see severe disability disability-related discrimination, see disability, discrimination disabled children 376, 453, 611, 613 disabled employees 355, 360–1 disabled persons 265, 270, 349–50, 353–62, 365–6, 368–76, 378–80, 573, 575 disabled pupils 377–8, 502 discharge 109, 180, 341, 416, 418–19, 426–7, 460, 464, 487–8 absolute 477 conditional 475, 477 discharge grants 140 disciplinary appeals 114–15 disciplinary charges 99, 112, 136 disciplinary hearings 100, 112–13, 121, 136, 529 disciplinary investigation 111, 314 disciplinary proceedings 32, 74–5, 105–6, 112 disciplinary sanctions 114, 505 discipline, prisoners 135–6 disclosure 104–5, 217, 225–6, 237–40, 251, 257–60, 528, 550, 553 protected 528, 543 Disclosure and Barring Service (DBS) 141, 456 discovery of documents 239 discretion 16–17, 73–4, 127–8, 151, 250, 472, 575, 642–3, 645–6 discretionary grants 565, 589 discretionary powers 22, 467 discretionary social fund 596, 612–13 discrimination 13, 265–8, 285–8, 298, 301–3, 307–8, 312–21, 326–7, 329–33, 335–6, 340–4, 364, 389, 549 acts of 301, 344, 354, 364, 368, 371, 375, 379 complaints 312, 327, 518 direct, see direct discrimination disability-related, see disability, discrimination elimination 269–70, 273 indirect, see indirect discrimination maternity 299, 304 pregnancy 305 prohibited 264–5, 299, 331 racial, see racial discrimination religious, see religious discrimination sex, see sex discrimination unfair 1, 288 dismissal 114, 353, 525–6, 528–9, 532, 538, 540–6, 549–52, 556–7

disorder 189–90, 193, 411, 414 public 190–3, 199, 332–3 disorderly behaviour 197, 204, 224 display 189, 196, 199–201, 210–12, 632 of flags 207, 212 disposal and management of premises 312, 331, 371 Dispute Avoidance and Resolution Service, see DARS disrepair 566, 568, 588 district councils 227, 344–5, 371–2, 454, 576, 580–1, 585, 588, 630–2 district judges 9, 49, 51, 61, 419, 421, 458, 460, 474 divorce 12–13, 164, 434–6 DLA (disability living allowance) 153, 535, 537, 601, 603, 605, 607, 616–17, 622 DNA profiles 61, 252 samples 60–1, 252 DoJ, see Department of Justice domestic violence 20, 156–7, 165, 431, 439–40, 448, 459 DPP (Director of Public Prosecutions) 10, 109, 111–12, 181, 185, 194–7, 199, 456, 458 drivers 36, 39, 43, 81, 252, 374–5 drugs 39–40, 54, 60, 89, 132, 217, 247, 414, 506 prisoners 132 DSD, see Department for Social Development due regard 273–4, 284 duties 273–7, 344–5, 357–60, 365–8, 372–4, 376–81, 468, 537–40, 590–2 of care 132, 588 general 341, 345, 453, 498–9, 538, 540 good relations 270, 274–5, 383 reasonable adjustments 358, 360–1, 364, 367–8, 370–2, 374, 376–8, 380–1 statutory 8, 161, 184, 270, 274, 284, 330, 418, 427 dwellings 39, 47, 567, 570, 572–3, 578–9, 581–2, 585, 588–90 earnings 531, 533–5, 564, 601–2, 611, 615, 617, 622–4 lower earnings limit 531, 533–5, 601–2 net 611, 622 ECNI, see Equality Commission for Northern Ireland economic rights 8, 19, 638 economic well-being 244, 254, 431, 639, 641 ECOs (Entry Clearance Officers) 149, 174, 302, 342 ECS (Extended Custodial Sentences) 138–9, 199, 479 ECT (electro-convulsive therapy) 424 ECtHR (European Court of Human Rights) 20–1, 77–81, 120–2, 187–9, 228–30, 244–8, 252–4, 433–5, 437–42 education 264, 299–301, 340–1, 347, 375–8, 483, 485–9, 493–8, 502–13

Index higher 202, 312, 317, 349, 376, 378, 384, 467–8, 502 prisoners 130 religious 319, 496–7 rights 483–513 sex discrimination in 301 suitable 487–8 Education and Library Boards, see ELBs Education Otherwise Than At School (EOTAS) 488, 508 education records 240, 496 education supervision orders, see ESOs education welfare officers (EWOs) 487 educational establishments 154, 317–18, 341, 536 EEA (European Economic Area) 148–9, 154, 162–7, 169, 173 citizens/nationals 148–9, 162–3, 165–6 family members of 165 efficient education, provision of 499, 501, 512 ELBs (Education and Library Boards) 241, 272, 301, 376–7, 454, 483–90, 492, 497–509, 511 elections 121–2, 227–8, 554 electro-convulsive therapy (ECT) 424 eligible rent 610–11 emblems 131, 212–13 emergency protection orders, see EPOs employee representatives 540, 545, 549 employees 303, 306–7, 323, 354–7, 359–64, 517–21, 524–6, 528–53, 555–8 disabled 355, 360–1 fixed-term 305, 523–4 permanent 305, 522–3 pregnant 522, 530 selection 302, 356 employers 293–300, 302–8, 322–6, 337–40, 355–65, 517–21, 523–46, 548–53, 555–8 decisions 358, 536, 542, 544 knowledge 316, 340, 357 employment 297–301, 303–5, 311–13, 318–26, 349–50, 354–6, 400–4, 518–22, 546 conditions of 356, 520, 522, 531, 553 continuous 520, 528, 546, 602 contracts of 298, 306–7, 333, 519–20, 522, 535, 540, 542, 548 discrimination 313, 327 equality 265, 299, 384, 399–400, 402 fair, see fair employment particulars 520–1 relations 517–18, 529, 554–5 relationships 301, 355, 519 rights 16, 517–58 sex discrimination in 302–3 Employment Appeal Tribunal 297, 334, 351, 401 Employment Code 349, 354, 356, 358–61 Employment Regulations 384, 390–1, 393, 395 employment support allowance, see ESA enforcement of civil judgments 14

661

of international human rights law 3–4 of right of silence before trial 81–2 entry port of 150, 158, 165, 169 with a warrant 45–6 without a warrant 46 entry clearance 149–50, 152, 155, 171 refusal of 149 Entry Clearance Officers (ECOs) 149, 174, 302, 342 environment 182–3, 374–5, 387, 394, 629–31, 633–8, 640, 643, 648 offensive 303, 316, 362, 386, 393–4, 406 environmental consultants 634, 645, 647 environmental impact assessment 631–4, 648 environmental information 237, 630–1, 635, 640, 648 environmental justice 629, 646 environmental legislation 630–1, 637 environmental litigation 640, 645 environmental rights 8, 629–48 environmental statements 633–5 EOTAS (Education Otherwise Than At School) 488, 508 EPOs (emergency protection orders) 459–60, 464 EQIAs, see equality, impact assessment Equal Opportunities Commission for Northern Ireland 264, 269, 299, 394 equal pay law 292–9 equal treatment 291–2, 294, 312, 319, 349, 522 equal value 292–7 equal work 291–2, 294 equality 263–5, 267, 269–82, 286–8, 309, 311, 324–6, 345, 452–3 bodies 269, 271, 331 clauses 291, 298 duty 263, 270, 274–5, 280, 335, 399 employment 265, 299, 384, 399–400, 402 framework in Northern Ireland 263–88 groups 266, 281, 287 human rights provisions 285–8 impact assessment (EQIAs) 278–81, 284–5 promotion of equality of opportunity 270, 273, 277, 279–80, 340, 373 s 75 of Northern Ireland Act 1998 263, 265, 270–85, 326, 345, 348, 373, 383, 399 schemes 276–8, 280, 282–4 model 278, 280 Single Equality Act 263, 267, 329, 384 Equality and Good Relations Commission 263, 269–70, 284 Equality Commission for Northern Ireland 267–73, 275–84, 322–3, 325, 347–9, 373, 375–6, 378–9, 384–6 ESA (employment support allowance) 153–4, 483, 510, 575, 596–7, 606–8, 620, 622, 624–5 contributory-based 598, 606–8 income-related 603, 606–9, 612–13, 621

662

Index

ESOs (education supervision orders) 487–8 estate agents 317, 343–4, 370–1, 566 ethnic groups 275, 335–7, 346 ethnic origin/ethnicity 263, 266, 288, 332–3, 339, 346, 453, 517 EU, see European Union European Commission of Human Rights 62, 219, 224 European Court of Human Rights, see ECtHR European Court of Justice, see CJEU European Economic Area, see EEA European Union 2–3, 18–19, 158–9, 286, 291–2, 330, 390–1, 629–30, 633 European Union, Charter of Fundamental Rights 3, 5, 19, 208, 330 European Union, law 18–19, 148–9, 162–7, 169–70, 286, 291, 293–4, 298–300, 390 sex discrimination 291–2 evidence 17–18, 40–1, 44, 46–7, 67–71, 73–4, 83–91, 155–6, 165–6 accomplices 86, 89 children 457–8 corroborative 35 giving of 84, 87, 89, 113, 115, 458 incriminating 52, 83 insufficient 99, 470 medical 351, 354, 358, 426 oral 18, 420, 503 supergrass 89 through video links 85–6 EWC (expected week of confinement) 530–1, 602 EWOs (education welfare officers) 487 ex-prisoners 140, 320 with conflict-related convictions 142 expected week of confinement, see EWC experts 11, 295, 503, 547, 634, 636, 641–2 expression 189, 207–9, 211–13, 215, 217, 219, 221, 227–9, 255–6 commercial 208, 220 freedom of, see freedom of expression political 211, 220, 227 expulsions 502, 506–7, 511 Extended Custodial Sentences, see ECS extended family members 163, 166 fair employment 263–4, 311–12, 318, 321, 324, 336 cases 301, 363 legislation 180, 265, 311–13, 316, 319, 324, 327, 336, 348 Fair Employment Agency 264, 311, 321 Fair Employment Commission for Northern Ireland 264, 269, 301, 322 Fair Employment Tribunal, see FET fair hearing 78, 80, 121, 136, 186, 457, 475, 506, 641 fair participation 311, 323–5, 475 fair trial 2, 19–20, 41, 73–4, 78–81, 84, 327, 431, 475 fairness 47, 73–4, 85, 88, 101, 186, 641 false imprisonment 50, 52, 56, 199

families 137, 409, 431–48, 452–3, 464, 491–2, 578, 613–14, 640 family homes 460–1 family life 137, 140, 156–7, 160–1, 247, 395, 431–2, 639–40, 642 respect for 247, 432 family members 105, 148, 153, 155, 158, 160–5, 169, 444, 457 extended 163, 166 immediate 163, 165–6 non-EEA 165–6 family proceedings courts 437, 458, 488 fathers 101, 247, 432, 436–7, 439; see also parents fees 149, 151, 157, 166, 241, 337, 434, 562, 587 female prisoners 126, 133–4 female workers 296, 299, 305 FET (Fair Employment Tribunal) 312, 316, 318, 321–2, 326, 518 FHE sector 376, 378–9, 381 films 213, 218, 220, 225, 555 financial assistance 15, 18, 565–6 financial provision orders 13, 436 financial resources 436, 645 fingerprints 59–61, 149, 251–2 firearms 34, 42, 47, 64, 247 First-tier Tribunal 171–3, 238 fixed-term contracts 304–5, 524, 542 fixed-term employees 305, 523–4 fixed-term tenancies 580 flag, union 185, 212 flags 188–9, 212–13, 316 designated flag days 185 display of 207, 212 historical 188 food 120, 130, 339, 466, 586, 630 prisoners 130 force power to1 use 61–3 reasonable 50, 59, 62, 108, 466 formal complaints 224, 282, 578 formal investigations 106–7, 109 foster care 455, 464–5 foster parents 432, 453–4, 465 free expression, see freedom, of expression freedom 2, 4, 18–19, 187–8, 192–3, 200, 207–8, 233–5, 247 of assembly 4, 180, 184, 186–8, 190, 192, 200, 243 of association 2, 179, 186, 243 of expression 2, 4, 186–7, 189, 207–30, 255, 257, 259, 442 in private places 229 fundamental freedoms 1, 19, 186 of information 229 of peaceful assembly 19, 179–80, 186, 188, 190 Freedom of Information Act 60, 95, 234–5, 237–8, 631 full duty applicants 567–8

Index functions 161, 233–4, 265, 269–76, 372–3, 387–8, 399, 426–7, 468 public, see public functions fundamental freedoms 1, 19, 186 fundamental rights 3–5, 19, 77, 208, 286, 330 gender 246, 254, 263, 265, 268–9, 275, 433, 440, 446; see also sex discrimination general duties 341, 345, 453, 498–9, 538, 540 General Qualifications Bodies, see GQBs general right of access to information 234–6 genuine material factor defence 295, 298 genuine occupational qualifications 303, 319, 339–40 good order 127–9, 131, 135, 506 good practice 70, 205, 237, 270, 274, 347–8, 367, 500, 579–80 good relations 270, 272, 274–5, 326, 330, 345, 452 good relations duty 270, 274–5, 383 goods 264–6, 302, 316–18, 320–1, 341–2, 349, 365, 369–70, 385 provision of 268, 293, 299, 312, 316–17, 364, 386 government 76, 220, 226, 233–4, 287, 601–2, 608–9, 633, 639–42 governors 123–4, 126–34, 136–7, 484–5, 490, 492–4, 496–7, 504–8, 510–11 GQBs (General Qualifications Bodies) 380–1 grammar schools 490–2 Catholic 491 voluntary 484–5 grandparents 158, 163, 432, 448, 569 grant-aided schools 202, 376–7, 490, 497, 499, 503–5, 508–10 grants discretionary 565, 589 mandatory 565–6, 589 renovation 565, 585 green form scheme 15, 518 guaranteed pension credit 510, 615–16 guardians 72, 413, 418, 461–3, 467, 469–70, 473–4, 477, 486 guardian’s allowance 154, 597, 603 guardianship 410, 412, 416, 418–20, 423, 427 guilt 82, 90, 108, 472, 474–6, 479–80 habitual residence 607, 626 harassment 199–200, 209, 303–4, 316, 355, 379, 385–7, 393–4, 405–6 definition 303, 386, 394, 396, 406, 580 sectarian 192, 200, 316 sexual orientation 394 health 134, 409–10, 422–3, 441–2, 452–3, 538–40, 553, 576–7, 588 assessments 526–7 authorities 417, 420, 423 care 125, 131–2, 137, 331, 413, 455 children 453, 460, 465 mental, see mental health protection 188, 208, 244, 412, 431, 446, 641 public 152, 165–6, 169, 248, 255, 566, 576, 587

663

Health and Safety Executive 296–7, 526, 539 Health and Social Care Board 131, 235, 452, 454 Health and Social Care Trusts 22, 24, 125, 131, 235, 419, 437, 441, 452 HET (Historical Enquiries Team) 27, 109 High Court 9, 12–14, 16, 67, 228, 251, 258, 260, 282–4, 298, 302, 393, 416, 425–6, 458, 512, 554–5, 643–4 higher education 202, 312, 317, 349, 376, 378, 384, 467–8, 502 higher rate care component 604–5 Historical Enquiries Team see HET Historical Investigations Directorate 102–3 HMOs (Houses in Multiple Occupation) 565, 585, 589–90 HMRC (Her Majesty’s Revenue and Customs) 524, 535, 597, 618–19 Home Department 42, 56, 160–1, 164, 174, 224, 228, 230, 286 Home Office 147, 156, 168, 171, 224, 342, 388 home owners 562, 565 home visits 137 homelessness 463, 568, 578, 590–2 decisions 592–3 legislation 564, 567 homes 137, 247, 316–17, 465–6, 487–8, 561–2, 564–8, 570–1, 577–8 care 387, 613 children’s 454–5, 464–6 nursing 314, 427, 454 principal 569–70, 577 private 181, 247, 640 respect for 247 hospital 69, 131–2, 412–16, 419–21, 427, 454, 460, 607, 613–14 hours of work 520, 525, 527, 538, 623 working 334, 361, 526, 536, 538, 551 House of Lords 68, 215–18, 224–5, 228, 239, 250–1, 302–3, 333, 338 houses 63, 370, 561, 564–5, 572–3, 576–8, 608, 611, 632 Houses in Multiple Occupation, see HMOs housing 153, 311, 565, 567–8, 573, 575–81, 585, 588–9, 592–3 associations 13, 609 benefit 153, 581, 587, 595–6, 598, 609–10, 612, 617, 621 costs 562–3, 581, 607–10, 614, 616–18, 623 rights 561–93 social 567–8, 578, 590 Housing Executive 22, 24, 565, 567–9, 571–2, 574–8, 581, 589–93, 609–11 Housing Rights Service 561, 563, 567, 574 Housing Selection Scheme 567, 592 human dignity, see dignity human rights, see also Introductory Note and access to information 233–4 and immigration control 159–61 law 4

664

Index

development at national level 4–5 in UK 5–6 protection 1, 4, 208, 451 treaties 2–3, 287 Human Rights Commission 288, 385–6 Human Rights Committee 207, 211 humanitarian protection 156, 158, 160, 167, 173 ICS (Indeterminate Custodial Sentences) 138–9, 479 identity 34, 36–7, 39, 73, 81, 206, 249, 287–8, 547 IEPs (individual education plans) 498, 500 ill-treatment 67–8, 124–6, 346, 427, 457 illness, mental 352, 354, 409, 413–16, 418, 420, 591; see also mental health IMBs (Independent Monitoring Boards) 123, 125, 129, 134 immediate family members 163, 165–6 immigrants 7, 447–8 immigration 147–75, 334, 434, 445 advisers 175 challenging decisions 172–5 control 147–50, 152, 165, 169, 434 after entry 151–2 before entry 149–50 at time of entry 150–1 criminal offences 171 detention centres 342, 388 enforcement of law 168–71 Immigration Rules 147–9, 151–8, 160, 164–5, 167, 169, 173–4, 334 officers 37, 150, 152, 158, 171, 174, 342 PBS (Points-Based System) 154, 161, 167 representations by elected politicians 175 immunity 556–8 impact assessments environmental 631–4 equality 278, 281 impact statements community 11 victim 11 imprisonable offences 114, 419–20 imprisonment 120–1, 123, 170, 194–5, 198–9, 201, 209, 212, 476–9 life 198, 200, 212, 443 incapacity 86, 163, 166, 419, 521, 535, 542 incapacity benefits 154, 531, 535, 575, 608 incitement 77, 103, 208–10, 255, 443 to disaffection 212 income 156, 562, 566, 574, 606, 610–11, 615–20, 622–3, 626 claimants 619–20 income-based jobseeker’s allowance (JSA) 153, 489, 575, 597–8, 603, 608–9, 612–13, 616–18, 621 income-related employment and support allowance 597, 600

income-related ESA 603, 606–9, 612–13, 621 income support 15, 153, 509–10, 598, 603, 608–9, 612–13, 618, 621 incriminating evidence 52, 83 indecent behaviour 196, 221, 444 independent advice centres 567, 574 independent and impartial tribunals 431, 641 independent experts 295 Independent Monitoring Boards, see IMBs Independent Reviewer 34, 59, 75–6 independent schools 376–7, 485, 488 independent trade unions 538, 545, 550–1, 553 Indeterminate Custodial Sentences (ICS) 138–9, 479 indictable offences 46, 51–2, 55, 60, 72, 76, 471, 474, 572 indirect discrimination 281, 292, 299–300, 313–15, 334–5, 389–93, 401–2, 404 claims 315, 335 definition 334, 391 justified 390 unlawful 315 indirect sex discrimination 296–7, 300, 523, 536 individual education plans (IEPs) 498, 500 industrial action 554, 556–8 Industrial Court 518, 550, 552–3 industrial tribunals 298, 306, 308, 337–8, 364, 517–18, 521–6, 541–2, 551–4 inequalities 267, 271, 273–5, 279–80, 287, 294, 298 audits of 279–80 inferences 60, 78, 82–3, 90–1, 300, 320, 392 adverse 75, 81–5, 90–1, 110, 113, 523 informal resolution, complaints against police 106–7 informal resolution 95–6, 106–8 information 127–9, 225–6, 233–41, 256–60, 495–7, 549–50, 553–6, 629–31, 640 about members of the security forces 212 confidential 226, 256, 337 freedom of 229 general right of access to 234–6 personal 237, 245–6, 258–60, 496 private 217, 243, 257–8 provision of 186, 220, 233, 367, 377, 442, 602 publication of 236, 258–9 rights 237–8 rights to access 7, 233, 235, 237, 239, 241, 244, 630 statistical 95, 99, 115 Information Commissioner 186, 234, 235, 237–8, 241, 246 informed consent 368, 473 informers 41, 74 as witnesses 86–90 injunctions 200, 209, 216–17, 224, 226, 259, 261, 375, 379

Index injury criminal 14 personal 46, 239, 505, 549, 588 physical 49, 51, 54 inquests 9, 12, 15–18, 105 legacy 27 procedures 17–18 inspectors 39, 47, 54–5, 57, 72, 79, 81, 194–5 insufficient evidence 99, 470 insurance 317, 341, 369, 561, 564 integrated schools 483, 485, 496, 506, 513 controlled 485, 496 interception of communications 253–5 interests best 414, 422–3, 438, 446–8, 458–9, 462, 469, 471, 477–8 commercial 237, 644 of justice 71, 80, 85, 88, 224–5, 432, 474, 641 legitimate 104, 208, 225, 230, 259–60 legitimate public 208, 230, 259 national 226, 243, 249 of national security 38, 188, 207, 244, 254, 431 private 252, 645 public 94–6, 108–9, 115–16, 215–16, 236–7, 239–40, 249, 258–60, 631 of public safety 255, 412 interference 189–90, 192, 207–8, 233–4, 244–7, 249–51, 253–4, 259–60, 639 internal complaints procedures 24, 122, 578 international human rights law development 1–3 enforcement 3–4 internet 32, 120, 218, 220 interrogation centres 76 interviews 71–2, 75–8, 83–4, 89, 91, 123, 126, 457–9, 469 police 56, 70, 78–9 intimate samples 60, 247 intimate searches 39–40, 54, 466 intimidation 104, 132, 189–90, 200, 209, 558, 568 introductory tenancies 569–71, 573–4 intrusion 243, 248–51, 255, 258–9 investigating officers 110, 113, 472 investigation 16, 24–5, 55, 87, 94–7, 100–5, 107–12, 124–5, 282–4 in absence of complaint 109 complaints against police 108–10 suspension from duty 110–11 by whom 109–10 disciplinary 111, 314 OPONI 101–2, 117 powers of 283, 384, 400 procedure 282–5 process 93, 457, 505 Irish citizenship 148, 169, 447 Irish-medium schools 485, 492

665

jobseeker’s allowance (JSA) 509–10, 575, 597, 616, 618, 624 contributory 597–8, 616–17, 621 income-based 153, 489, 575, 597–8, 603, 608–9, 612–13, 616–18, 621 journalists 70, 85, 213, 217, 219, 224–6, 230, 255 sources 225 threats to 219 JSA, see jobseeker’s allowance judges 20–1, 58, 68, 70, 73–4, 89–91, 213–14, 223, 642–4 Judges’ Rules 70–1, 74 judicial review 16–18, 21–4, 77, 105, 174–5, 493, 511–12, 640–4, 646 and equality 284–5 juries 9–10, 12, 16–18, 67–8, 73–4, 81–5, 89–91, 213–14, 223–6 jury service 12, 122, 538, 543 justice 10–12, 93–5, 109, 116, 119, 222–3, 479, 629–30, 644–6 environmental 629, 646 interests of 71, 80, 85, 88, 224–5, 432, 474, 641 justification 215–16, 296–7, 357–8, 368, 377, 380, 393, 400–1, 405 defence 356, 359, 368–9, 372, 376–7, 379, 402 objective 295–6 test 366, 402, 405 open-ended 402 justified indirect discrimination 390 juvenile courts 225, 458, 460 Juvenile Justice Centre 470–1, 477–8 Juvenile Justice Centre orders 477–8 knowledge, employer’s 316, 340, 357 Labour Relations Agency, see LRA landlord, private 152, 579, 614 landlords 317, 343, 370–1, 547, 565–6, 569–81, 583–9, 611 social 567–8, 570–5 Law Centre (NI) 172, 409, 416 lawfulness 53, 411, 416, 423, 641 lawyer, right of access to 76–7, 79 lawyers 15, 20, 76–80, 83, 121, 126, 136, 239, 645–8 learning difficulty which calls for special educational provision 497 leave 147, 149–57, 160–1, 167–9, 171, 209, 459–60, 530–4, 537 refusal of 152, 172 legacy inquests 27 legacy investigations 102–3 legal advice 74–5, 77–9, 83–4, 121, 136, 364, 469, 547, 567 access by prisoners 126 legal advisers 41, 80, 85, 126, 128, 644 legal aid 7, 9, 15–16, 18, 26, 213, 467, 474, 503 criminal 15

666

Index

legal assistance 79, 384 legal professional privilege 46, 80, 85, 237, 255 legitimate interests 104, 208, 225, 230, 259–60 legitimate public interest 208, 230, 259 length of service 296–7, 526 less favourable treatment 300, 337, 355–8, 366, 369, 371–2, 376–7, 379–80, 523 liability 223, 302, 304, 315, 333, 355–6, 549, 556–7, 645–7 admission of 64, 115 vicarious 340, 557 libel, criminal 216, 221 liberty 4–6, 411, 413, 416–17, 419, 448, 451, 466–7, 478 licence 13, 138–9, 205, 479–80, 570 conditions 138–9 life imprisonment 138–9, 198, 200, 212, 443, 479 mandatory 479 life sentence prisoners 136–9 limited resources 267, 347 litigation, environmental 640, 645 loans 317, 341, 453, 562, 566, 608, 613–14, 618 budgeting 566, 587, 600, 611–14, 621 crisis 566, 587, 611, 613–14, 621 local authorities 215, 220, 241, 294, 333, 596 local councils 241, 272, 294, 526, 539, 565, 579; see also district councils local housing allowances 609–10 lone parents 607, 610, 614, 617–18, 624–5 long-term effect 350, 353 Lord Chief Justice of Northern Ireland 71, 389, 475, 643, 645 loss of property 72, 76 low incomes 562, 564, 581, 602, 618–19 lower earnings limit 531, 533–5, 601–2 LRA (Labour Relations Agency) 24, 364, 518, 550, 553 magistrates 9, 12–13, 45, 48–50, 55, 58, 60, 112, 474 magistrates’ courts 9, 12, 46, 49–50, 197–8, 437, 458 mainstream schools 376, 485–6, 499 maintenance of order 31, 47, 63, 205 maintenance payments 611, 617 maladministration 23–5, 327, 640 malicious falsehood 216 malicious prosecution 50 mandatory grants 565–6, 589 marches 183, 189, 552, 558; see also public processions marital status 8, 265, 272, 275, 447 marriage 148, 153, 155–6, 159, 165, 241, 389–90, 432–6, 446 married couples 160, 389–90, 438 maternity 288, 292, 299, 304–5, 530–3, 541, 543, 611, 614 rights 305, 530, 549 maternity discrimination 299, 304

maternity leave ordinary 304, 530, 532 statutory 304 maximum housing benefit 609–11 maximum penalties 45, 48, 194, 196–9, 201–2, 205–6, 209, 211, 443–4 means-tested benefits 510, 596, 598, 601, 603, 609, 620–1 mediation 106–8, 112, 184, 518 medical evidence 351, 354, 358, 426 medical officers 76, 128, 417–18, 423, 425 medical practitioners 127, 414–15, 417, 422, 427 medical records 45, 225, 239 medical treatment 120, 131, 351, 354, 410, 413–18, 420, 422–3, 437 meetings 104, 126, 129, 179–206, 241, 463–4, 501–2, 536, 544 political 182 protest 183–5, 187, 190–1, 193–7 public 180–1, 184, 190–1, 193, 195, 197, 199, 201, 215 mental capacity 355, 413–14, 419, 422, 424 mental conditions 90, 168, 410, 412–14, 417, 419, 422 mental disability 409, 412, 436, 619 mental disorder 49, 86, 409–27 mental health 131, 410, 412, 414, 416, 419, 423, 441–2, 467 care 410, 413 law 170, 409, 418–19 Mental Health Review Tribunal 15–16, 416, 419, 427 mental illness 352, 354, 409, 413–16, 418, 420, 591 mental patients 411, 422–4 mentally disordered persons 32, 72, 75 questioning 72 migrant workers 2–3, 347 Minister of Justice 11, 93–4, 97, 109, 116, 441, 479 Ministry of Defence, see MoD minor repairs 566, 578 misadventure 16–17 miscarriages of justice 70, 230, 528 misconduct 24, 101, 542, 544, 618, 625 MLAs (Members of the Legislative Assembly) 24, 125, 217, 511 MoD (Ministry of Defence) 25, 64, 302, 334 model equality scheme 278, 280 monitoring 125, 128, 230, 253, 277–9, 281, 323, 348, 498 morals 188, 208, 244, 412, 431, 446, 641 mortgages 372, 561–2, 564, 608–9, 616 arrears 563–4, 572 payments 562–3, 608 mothers 129, 134, 305, 341, 432, 437, 439, 441, 448 murder 27, 64, 77, 88, 101, 103, 117, 138, 218 NASS (National Asylum Support Service) 159 national courts 286, 291, 296, 401, 512 National Health Service 156–7, 235, 441, 446–7

Index national insurance contributions 534, 597–8, 601, 606, 611, 614–17 national interests 226, 243, 249 National Minimum Wage, see NMW national origins 196, 210, 266, 334–6, 347, 392 national security 18, 97, 225, 227, 230, 249, 251, 344, 641 certificates 308 grounds 227 interests of 38, 188, 207, 244, 254, 431 nationality 149–50, 154, 158, 161, 163, 210, 341, 344, 346–7 natural justice 457 net earnings 611, 622 newspapers 128, 217, 219, 221, 224, 239, 255, 474 NGOs (non-governmental organisations) 6, 21, 233, 634, 644 NHS, see National Health Service NIACRO (Northern Ireland Association for the Care and Resettlement of Offenders) 129 NICEM (Northern Ireland Council for Ethnic Minorities) 313 NICHA (Northern Ireland Co-Ownership Housing Association) 562 NIGALA (Northern Ireland Guardian ad Litem Agency) 462 NIHRC (Northern Ireland Human Rights Commission) 6, 21, 25–6, 127, 210, 212, 219, 228, 381 NIPS (Northern Ireland Prison Service) 119–20, 123–6, 129, 131–3, 136–7, 346 NMW (National Minimum Wage) 524–5, 543, 623 non-compliance 372, 416 non-consensual treatment 412, 422, 424 non-disabled persons 357, 380–1 non-discrimination 264, 286, 296; see also discrimination legislation 266, 269–70 non-EEA family members 165–6 non-employment fields 384–5, 390, 399 non-governmental organisations, see NGOs non-jury courts 33 non-molestation orders 13, 439, 459 non-payment of rent 572, 583 non-police officers 96–7 non-rent-controlled tenancies 579, 584 normal day-to-day activities 350, 353–4, 502 Northern Ireland Assembly 22, 26, 116, 119, 222, 227, 396, 595, 597 Northern Ireland Association for Mental Health 416 Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO) 129 Northern Ireland Co-Ownership Housing Association, see NICHA Northern Ireland Commissioner for Children and Young People 7, 25, 269

667

Northern Ireland Council for Ethnic Minorities, see NICEM Northern Ireland Courts and Tribunals Service 12, 18, 25, 172, 572 Northern Ireland Executive 27, 267, 452, 595–7 Northern Ireland Guardian ad Litem Agency, see NIGALA Northern Ireland Housing Executive 313, 361, 363, 463, 567 Northern Ireland Human Rights Commission, see NIHRC Northern Ireland Legal Services Commission 15, 26, 122, 172 Northern Ireland Office 11, 25, 31, 34, 120 Northern Ireland Policing Board 56, 93, 202, 235, 272, 469 Northern Ireland Prison Service, see NIPS notification 183, 185, 226, 378, 530, 534–5, 592 notification orders 443–4 NSPCC 162, 456, 458–62 nuisance 188, 202, 204, 243, 417, 572, 576, 583, 588 nursery schools 484, 489 nurses 40, 54, 132, 302, 415 nursing homes 314, 427, 454 objective justification 295–6 objectors 633–7, 642–4, 647–8 objects, power to seize 46–7 obscenity 221 obstructive sitting 200 occupation orders 13, 439 occupational pensions 616–17 occupational qualifications, genuine 303, 319, 339–40 OFCOM 218–21 offenders 88, 138, 140–2, 168, 255, 260, 473, 476–7, 479 offensive environment 303, 316, 362, 386, 393–4, 406 offensive weapons 39, 182, 206 Office of Care and Protection 409, 426 Office of the First Minister and the Deputy First Minister, see OFMDFM Office of the Immigration Services Commissioner, see OISC Office of the Industrial Tribunal and Fair Employment Tribunal see OITFET Office of the Police Ombudsman for Northern Ireland, see OPONI official secrets 81, 224, 226–7 OFMDFM (Office of the First Minister and the Deputy First Minister) 267, 269–70, 284, 324, 385–6, 399 OISC (Office of the Immigration Services Commissioner) 175 OITFET (Office of the Industrial Tribunal and Fair Employment Tribunal) 321–2 Omagh investigation 101, 116

668

Index

Ombudsman 23–4, 96–7, 100–1, 103, 106–12, 114–16, 124, 327, 504 Ombudsman, Assembly 23, 25 Ombudsman, Police see OPONI Ombudsman, Prisoner 121, 124–5, 127 Ombudsman, UK 25 omissions 7, 62, 123, 299, 379, 390, 540, 549 onus of proof, see burden of proof open-air public meetings 180, 184, 188, 190–1, 193 open court 87, 224 OPONI (Office of the Police Ombudsman for Northern Ireland) 6, 93–8, 100–12, 114–16, 251 investigations 101–2, 117 origin and aims 94–6 oppressive behaviour 98–9 oral evidence 18, 420, 503 oral hearings 20, 135, 172, 503 order maintenance of 31, 47, 63, 205 public 39, 180, 204, 210–12, 320, 344, 431, 558, 641 orders care 437, 460–2, 464, 488 child assessment 459–60 control 33, 227 JJC 477–8 non-molestation 13, 439, 459 notification 443–4 occupation 13, 439 possession 188, 202, 563, 573, 581–2 probation 469, 476 prohibited steps 437, 460 protective costs 645, 648 remedial 5, 21, 250, 434 specific issue 437, 460 supervision 417, 460–2 YOC 478 youth conference 475–6 Orders in Council 22, 95 ordinary maternity leave 304, 530, 532 otherwise protected expression 189 owner-occupiers 561, 564–7, 577, 589, 607–9, 617–18 PAFT (Policy Appraisal and Fair Treatment) guidelines 271, 383, 399 parades 62, 98, 180, 183, 185–7, 189, 193, 201, 203 Parades Commission 180, 183–6, 188, 190–5, 235 duties and powers 184–5 failure to comply with condition imposed by 195 transparency and decision-making process 185–6 paramilitary groups 135, 142 paramilitary prisoners 119, 135, 142 parental leave 292, 305, 360, 536–7, 543

parental responsibility 437, 439, 452, 454, 460–6, 477 parents 157–8, 163–5, 432–3, 437, 456–7, 459–62, 477, 486–93, 495–513 adoptive 432, 438–9 child’s 158, 470–1, 477, 498–9, 612 foster 432, 453–4, 465 lone 607, 610, 614, 617–18, 624–5 parliamentary privilege 236 Parole Commissioners 138–9, 479–80 part-time workers 296, 306–7, 523, 543 partial defences 440 parties, political 27, 99, 179, 214, 218–19, 228, 267, 555 partners 155–7, 363, 532, 572, 602–3, 606–7, 611–12, 614–17, 619 bereaved 157 civil, see civil partners partnerships, civil 153, 156, 164–5, 389–90, 395–6, 433, 438, 601, 615 passports 148–51, 165, 173 past disability 351, 354 paternity 437, 532–4, 543, 617 Patient Client Council 127 patients 85, 351, 409–10, 415–16, 418–19, 421–7 consent 422, 424 detained 131, 416, 424, 427 property 412, 426 Patten Commission 93–4 payments 181–2, 241, 524–5, 574, 587, 601–3, 605–6, 612–13, 617 maintenance 611, 617 mortgage 562–3, 608 redundancy 519, 546 PBS (Points-Based System) 154, 161, 167 PCC (Press Complaints Commission) 219, 244, 255 PCOs (protective costs orders) 645, 647–8 PCP, see provision, criterion or practice PCSPs (Policing and Community Safety Partnerships) 11, 94 peaceful assembly 180, 187–8, 199 freedom of 19, 179–80, 186, 188, 190 Penalty Notices for Disorder, see PNDs pension benefits 296, 307 pension credit 153, 510, 575, 598, 603, 608–9, 612–13, 621 guaranteed 510, 615–16 pension rights 297, 531 pensionable age 598, 606, 608, 614–15 pensions 274, 307, 436, 521, 529–30, 596–7, 615 occupational 616–17 occupational schemes 359, 530, 538, 611 personal 617, 622 schemes 521, 529, 543 state retirement 575, 598, 614–16 periodicals 128, 219

Index permanent residence 166 personal advisers 468, 617 personal allowances 607, 610, 617–18 personal and biometric databases 249–50 personal autonomy 207, 245–6, 409, 419 personal care 158, 164, 455, 603 personal circumstances 563, 574, 598–9 personal data 240, 245, 248, 250 personal development 245–6, 414 personal independence payment, see PIP personal information 237, 245–6, 258–60, 496 personal injury 46, 239, 505, 549, 588 personal life 243, 245, 258 personal pensions 617, 622 photographs 59, 222, 241, 256–8, 260 physical features 358, 360–1, 367, 370, 374, 377, 379–81 physical impairments 351 physical injury 49, 51, 54 physical punishment, see corporal punishment picketing 558 PIP (personal independence payment) 153, 595, 605, 622 Planning Appeals Commission 635–6, 642 planning applications 634–6, 647 planning decisions 643–4 planning permission 372, 565, 631–3, 636–8, 642, 644, 647 pluralism 188, 208, 286 PNDs (Penalty Notices for Disorder) 204 PNLD (Police National Legal Database) 404–5 Points-Based System, see PBS poison pen letters 210 police 35–9, 43, 45–53, 55–65, 67–70, 73–83, 93–103, 105–17, 201–4 action 203, 250 assistant chief constables 41–2, 44, 57, 79, 110–14, 254 chief constables 50, 52–4, 61–2, 94–7, 100–1, 108–12, 191, 201–2, 338 conduct 73, 102 detention 73, 469 inspectors 39, 47, 54–5, 57, 72, 79, 81, 194–5 interviews 56, 70, 78–9 officers 32–3, 35–49, 51–5, 57–60, 70–6, 95–7, 106–10, 112–13, 421 senior 42, 44, 57, 106, 111, 114–15, 190, 205 powers 31–2, 53, 60, 62, 96, 202–3, 251, 410, 423 protection 87, 460 questioning 70–1 questions 67, 82–3 stations 32, 38, 40, 53–6, 59, 71–2, 185, 469–70, 473 superintendents 40, 55, 58–60, 72, 76–7, 99–100, 110 Police National Legal Database (PNLD) 404–5 Police Ombudsman see OPONI

669

Police Service of Northern Ireland, see PSNI Policing and Community Safety Partnerships (PCSPs) 11, 94 Policing Board see Northern Ireland Policing Board Policy Appraisal and Fair Treatment guidelines, see PAFT political belief 327, 517 political discrimination 8, 264, 313–14, 321 political expression 211, 220, 227 political meetings 182 political opinion discrimination, see religious and political opinion discrimination political parties 27, 99, 179, 214, 218–19, 228, 267, 555 political rights 2–3, 8, 207, 228, 243, 248, 329, 451, 638 pornography 444 port and border controls 37–8, 56, 58 ports, of entry 150, 158, 165, 169 positive action 268, 308, 340, 379 possession 37–8, 41–2, 48–9, 131, 204–5, 563, 572–4, 578, 583–4 actions 563, 572–4 orders 188, 202, 563, 573, 581–2 post-primary schools 490–2 powers 35–9, 41–53, 55–63, 68–9, 189–93, 219–22, 418–20, 427, 436–8 army 31–64 to arrest anti-terrorism law 51–3 ordinary law 48–51 to close roads 204 to detain anti-terrorism law 56–60 ordinary law 53–6 discretionary 22, 467 to enter and search premises anti-terrorism law 47–8 ordinary law 45–7 general 45, 67 to interfere with property 63 of investigation 283, 384, 400 police 31–64, 96, 203, 251, 410, 423 processions, protests and other meetings 202–6 to require removal of masks 206 to retain fingerprints and DNA profiles 60–1 search 33, 38, 42, 249–50, 346 to seize objects 46–7 statutory 32, 47, 67, 220, 313, 568, 576 to stop and question anti-terrorism law 36–7 ordinary law 35–6 to stop and search 33, 38, 249–50, 346 people anti-terrorism law 41–3 ordinary law 38–9

670

Index

vehicles anti-terrorism law 44–5 ordinary law 43–4 to take action to prevent an imminent breach of the peace 203 to take photographs and fingerprints 59 to take samples 60 to use force 61–3 PPS (Public Prosecution Service) 10, 86, 95, 100, 343, 345, 472–4, 638 pre-release home and resettlement leave 137 preferred schools 490, 492 pregnancy 134, 265, 288, 299, 304–5, 431, 441–2, 522, 532 discrimination 305 surrogate 447 pregnant employees 522, 530 pregnant women 305, 442 premises 32, 45–8, 317, 342–4, 360–1, 370–1, 421–2, 454–5, 584 disposal and management of 312, 331, 371 power to enter and search, see powers, to enter and search premises religious 396 Press Complaints Commission, see PCC prevention of disorder 85, 188, 207, 225, 244, 412, 431 primary schools 182, 319, 341, 484, 486, 489–90, 492 principal homes 569–70, 577 prison authorities 121–2, 126, 130, 132, 248 prison officers 126, 132, 355 Prisoner Ombudsman 121, 124–5, 127 prisoners 7, 11, 70, 119–40, 229–30, 342, 346–7, 431–2, 448 access to legal advice 126 body searching 132–3 books and newspapers 128 clothes 129 convicted 120–1 discharge grants 140 discipline 135–6 drugs 132 emblems 131 female 126, 133–4 food 130 freedom of expression 229–30 internal requests and complaints procedures 122–4 legal rights 120–1 letters and telephone calls 127–8 life sentence 136–9 medical treatment, hygiene and exercise 131–2 money 129–30 paramilitary 119, 135, 142 remand 119, 126 restriction of association 133–4 rights 119–42

rights automatically lost on conviction 121–2 searches 132–3 security classifications 125–6 sentenced 129, 137 separated 119, 135–6 temporary release 11, 136–7, 140, 614 transfer 139–40 visits 128–9 women 134–5 prisons 16, 37, 39, 49, 63–4, 119–20, 122–34, 137–9, 195–7 privacy 121, 127, 217, 219, 239, 243–5, 247–51, 253, 255–61 rights to 243–61 private actors 229, 243–5, 250, 253, 256 private homes 181, 247, 640 private information 217, 243, 257–8 private interests 252, 645 private landlords 152, 579, 614 private life 36, 41–2, 161, 186, 245–7, 250–4, 257–60, 383, 431–2 respect for 186, 245–6, 250–2, 260, 432 private persons 213, 342, 387 private property 41, 63, 188, 198, 202, 213, 243, 565 private rented sector 578–9, 586, 589, 609–11 private schools 335, 377, 513 private tenancies 579–82, 585–6, 588–9 privilege 67, 80, 83–5, 128, 137, 215, 311 absolute 215 parliamentary 236 public interest 240 qualified 215–16 probation officers 229, 471, 476–7 probation orders 469, 476 processions 62, 179–206 professional advisers 426, 636 prohibited steps orders 437, 460 promotion of equality of opportunity 270, 273, 277, 279–80, 340, 373 PRONI (Public Records Office of Northern Ireland) 238 property 63, 190–3, 370, 425–7, 506, 561–70, 572–4, 576–81, 583–5 council 333, 345 patients 412, 426 power to interfere with 63 private 41, 63, 188, 198, 202, 213, 243, 565 residential 182, 370, 563 right to compensation 63 rights 7, 202, 229, 639, 642 proportionality 191, 218, 296, 574 proscribed organisations 10, 34–5, 131, 135, 180, 201, 211, 227 support for 211 prosecution 36–8, 68, 72–3, 83–4, 86–8, 90, 151, 445–6, 473–4 prosecutorial decisions 343, 345 prostitution 444

Index protected disclosure 528, 543 protected tenancies 13, 579, 582–3, 586 protection of health 188, 208, 244, 412, 431, 446, 641 protective costs orders, see PCOs protest meetings 183–5, 187, 190–1, 193–7 definition 181 Protestant children 491 Protestant teachers 318 Protestants 311–12, 314–15, 317, 324, 336, 484 protests 51, 62, 135, 179–206 provision, criterion or practice (PCP) 288, 300, 315, 334, 358–60, 379–80, 391–2, 402, 404 provocative conduct 199 PSED (public sector equality duty) 273–4 PSNI (Police Service of Northern Ireland) 31, 34–5, 94, 96–7, 115–16, 162, 180, 194–5, 205; see also police PSVs (public service vehicles) 374 psychiatric care 417, 420; see also mental health, care psychiatric treatment 422–3 psychiatrists 415–16, 420, 423 public authorities 233–8, 243–5, 247–51, 253–5, 265, 270–3, 275–85, 342–3, 372–3 definition 235, 272 designated 271, 276, 278–80, 282 public bodies 22–5, 237–8, 269, 271, 274, 630–1, 634–5, 644, 646 costs 646–7 public buildings 181–2, 202, 212 public disorder 190–3, 199, 332–3 public functions 235, 250, 343, 385, 387–8, 631 exercise of 266, 284, 395–6, 406 public funds 127, 150, 153–9 public health 152, 165–6, 169, 248, 255, 566, 576, 587 public interest clear 234, 259 defence 214, 226 legitimate 208, 230, 259 privilege 240 public meetings 180–1, 184, 190–1, 193, 195, 197, 199, 201, 215 open-air 180, 184, 188, 190–1, 193 public order, offences 211, 213 public place 39, 42–3, 181–2, 196–201, 204, 248, 250, 253, 421 public policy 152, 165–7, 169 public processions 180–1, 183–5, 187–8, 190–6, 199, 201, 204 banning 193–4 Public Prosecution Service, see PPS Public Records Office of Northern Ireland, see PRONI public safety 127, 141, 188, 207, 244, 420, 431, 442, 641 interests of 255, 412

671

public sector equality duty, see PSED public services 270, 327, 365, 374, 387 publication 213, 216, 218, 221, 223–7, 236–7, 256–61, 349–50, 638 of information 236, 258–9 schemes 236 publicity 82, 170, 224, 432, 641, 647 punishment 12, 19, 127–8, 135–6, 209–10, 410, 441, 505, 513 pupil records 495–6 pupils 339, 341, 369, 376–7, 483–7, 489–92, 494–7, 499, 504–10 disabled 377–8, 502 registered 487–8, 494, 504 qualifications 12, 128, 221, 313, 339, 380, 405, 495–6 accredited 508 genuine occupational 303, 319, 339–40 qualified privilege 215–16 questioning 31–3, 35, 38, 52–3, 58 enforcement of rules 73–4 mentally disordered persons 72 of suspects and witnesses 67–91 at trial 84–5 unlawful 67–8 racial discrimination 2–3, 8, 210, 264, 287, 298, 302, 329–48, 387 and criminal justice system 345–7 racial groups 270, 272, 275, 330, 334–5, 339–40, 343, 345, 392 racially-motivated crimes 346 rape 441–3 reasonable adjustments 264, 354–5, 357–62, 365–6, 368–73, 376–81, 502 duty 358, 360–1, 364, 367–8, 370–2, 374, 376–8, 380–1 reasonable and probable cause 50 reasonable belief 203, 528 reasonable care 216, 520, 538, 540 reasonable cause 421, 456, 460, 581 reasonable contact 460, 531 reasonable force 50, 59, 62, 108, 466 reasonable grounds 38–40, 43, 46, 48–9, 51, 54–5, 57, 59–60, 470 reasons, giving of 12, 50, 52 recordable offences 59, 61 records custody 34, 55–6, 75 education 240, 496 medical 45, 225, 239 pupil 495–6 written 40, 43, 46, 48, 57, 59–60 recruitment 318–19, 324, 338–9, 356, 359–60, 402–3, 405, 455, 465 of teachers 266, 318–19 redevelopment 576–8

672

Index

redundancy 318–19, 325, 517, 532, 538, 542, 545, 553 payments 519, 546 procedures 325 refugees 149–50, 158–9, 167, 170, 173, 448 refusal of leave 152, 172 refusal to surrender alcohol 201 Registered Housing Associations, see RHAs registered pupils 487–8, 494, 504 Regulation and Quality Improvement Authority, see RQIA release 11, 53–4, 69, 87, 138–40, 142, 257–8, 470–1, 479–80 temporary 11, 136–7, 140, 614 religion 265–6, 285, 287–8, 314–15, 317–19, 327, 384–5, 393, 396 prisoners 130–1 religion-specific training facilities 325 religious and political opinion discrimination 311–27 burden of proof 320–1 in disposal or management of premises 317 duties on employers 322–6 in employment 313–17 exceptions 318–20 in further and higher education 317–18 Human Rights Act 1998 327 where and when to claim 321–2 religious belief 99, 263, 265, 268–70, 275, 311–12, 314–19, 321–2, 324–6 religious denominations 131, 317–18, 496 religious discrimination, see religious and political opinion discrimination religious education 319, 496–7 religious premises 396 remand 119, 122, 126, 129, 134, 419–20, 470 remand prisoners 119, 126 remedial orders 5, 21, 250, 434 removal 151, 160, 167, 169–74, 319–20, 367, 370, 409, 417 renovation grants 565, 585 rent 13, 562, 572, 574–5, 579–80, 583–4, 586–8, 609–11, 614 arrears 13, 574, 586, 611 eligible 610–11 non-payment 572, 583 repairs 472–3, 565–6, 569, 571, 575–6, 578, 582, 584, 587 minor 566, 578 reporting restrictions 225, 260 representatives 193, 227, 282, 474, 484–6, 539, 545, 550, 553 safety 539, 553 trade union 545, 553 residence 140, 156, 164, 166–9, 344, 417, 434, 436–7, 460 orders 437, 465, 612 requirements 315, 344, 626

residential property 182, 370, 563 residents 140, 152, 163, 166–7, 193, 490–1, 568, 576, 639–40 resources 26–7, 139, 276–7, 368, 498, 501, 512, 644, 647–8 financial 436, 645 limited 267, 347 respect for correspondence 248 respect for family life 247, 432 respect for private life 186, 245–6, 250–2, 260, 432 respect for the home 247 returning residents 167–8 review officers 55, 57 RHAs (Registered Housing Associations) 567, 569, 571, 573–8 Right to Repair Scheme 571–2, 575 rights 1–8, 119–22, 186–90, 192–3, 285–8, 525–7, 569–72, 580–2, 638–41 of abode 148 to access information 233–41 of access to a lawyer 76–7, 79 automatically lost on conviction 121–2 basic 1, 5, 579, 582 of children 25, 376, 451 civil 120, 263, 431, 641 of data subjects to stored data 240–1 economic 8, 19, 638 education 483–513 employment, see employment, rights human 1–7, 173–4, 233, 285–6, 311, 409–10, 512, 638–9, 641–4 to life, liability 639 maternity 305, 530, 549 political 2–3, 8, 207, 228, 243, 248, 329, 451, 638 prisoners 119–42 to privacy 243–61 property 7, 202, 229, 639, 642 of silence at trial 90–1 of silence before trial 80–1 enforcement 81–2 restrictions on 82–4 solidarity 19, 286 victims 9, 11, 13, 15, 17, 19, 21, 23, 25 riotous behaviour 197–8 riots 198–200 risk assessment 137, 139, 358, 369, 532, 539 roads 13, 44, 49, 63, 182, 204–5, 527 definition 182 powers to close 204–5 Roman Catholics, see Catholics Royal Ulster Constabulary, see RUC RQIA (Regulation and Quality Improvement Authority) 125, 410, 412, 423, 425–7, 465, 467 RUC (Royal Ulster Constabulary) 50, 52–3, 71, 77–8, 96, 102, 110, 115–16, 224; see also police

Index rule of law 1, 286, 643 rural areas, designated 565 SACs (Special Areas of Conservation) 637 Safeguarding Board for Northern Ireland, see SBNI safety 132–5, 374–5, 421–2, 518, 526–8, 532, 538–40, 553, 565 safety representatives 539, 553 same-sex couples 389–91, 395, 432–3 same-sex marriage 395–6, 433 samples DNA 60–1, 252 power to take 60 urine 60 sanctions 3, 111, 113–14, 284, 465–6, 507, 595, 618, 624–6 disciplinary 114, 505 SAP (statutory adoption pay) 534, 602 savings 156, 596–8, 606, 610, 614, 616–18, 622 savings credit 616 SBNI (Safeguarding Board for Northern Ireland) 456 scandalising the court 207, 223 school attendance orders 487–9 schools 182, 301, 318–19, 340–1, 376–8, 380, 454–5, 483–511, 513 Catholic maintained 341, 484, 507 controlled 483–4, 496, 507 grant-maintained 488, 507 independent 376–7, 485, 488 integrated, see integrated schools Irish-medium 485, 492 mainstream 376, 485–6, 499 nursery 484, 489 preferred 490, 492 private 335, 377, 513 special 376, 484, 486, 496, 509 specified 488, 493 suitable 487, 490–2, 508–9 screening 277–8, 280, 284, 458, 633 SDIC (Statutory Duty Investigations Committee) 283 search powers 33, 38, 42, 249–50, 346 search, of premises 45–8, 53 search procedures 132, 135 searches 32, 35–6, 38–48, 132–3, 135, 204–5, 247, 249–50, 505 detained persons 54 intimate 39–40, 54, 466 prisoners 132–3 safeguards for people being searched 40–1 of vehicles 43–4 Second Opinion Appointed Doctor, see SOAD secondary schools 182, 319, 484–5, 491–2, 495 Secretary of State 63, 138–40, 159–61, 164–6, 168–71, 174–5, 191, 193, 276–7 sectarian harassment 192, 200, 316

673

secure tenants 569–73, 576 security 33–6, 42, 44, 47, 62–4, 125, 127–9, 205, 226 national, see national security public 165–7, 169–70, 249 Security Service 97, 103, 221, 226, 235, 254 sedition 211, 216, 221 selection, of employees 302, 356 self-employed person 163, 166, 606, 617, 623 self-sufficient persons 163–6 SEN, see special educational needs SENAC (Special Educational Needs Advice Centre) 500, 503 SENCo (Special Educational Needs Coordinator) 498, 500 SENDIST (Special Educational Needs and Disability Tribunal) 378, 501–4 senior officers 42, 44, 47, 57, 96, 106, 110–11, 114–15, 190 sensory disabilities 351 sentenced prisoners 129, 137 sentences 9–11, 61, 87–8, 122, 133–4, 137–40, 198–9, 419–20, 479–80 custodial 61, 471, 475, 477 extended custodial 138, 199, 479 separated prisoners 119, 135–6 service charges 608–10 service providers 15, 267, 343, 363, 365–72, 380, 394, 468 service provision 27, 306, 342, 347, 373, 452, 546, 553 change 546–8 settlement 25, 149, 151, 155, 157, 167, 213, 315, 378–9 severe disability 603, 607, 612–13, 616, 619–20 severe disablement allowance 153, 535, 575, 606, 608 sex discrimination 8, 264, 266, 291–309, 447, 505 in education 301 in employment 302–3 equal pay law 292–9 European Union law 291–2 indirect 296–7, 300, 523, 536 legislation 264, 299–301 and protective legislation 308 in provision of goods, facilities and services 302 remedies 308 retirement and pensions 307 sex offenders 260, 443 sexual activity 222, 442–4 sexual harassment 303, 308, 394 sexual life 8, 246 sexual matters 431–48 sexual offences 86, 225, 431, 442–6, 457, 478 sexual orientation 210, 263, 265–6, 268–70, 272, 383–93, 395, 399–400, 445–7

674

Index

discrimination 8, 383–97, 400 law 383–4, 388, 395–6, 406 harassment 394 sexual services 444 shop workers 527–8, 543 shopping centres 43, 181, 229 shops 13, 332, 343, 527, 561, 632 SIAC (Special Immigration Appeals Commission) 172 silence 35, 67–8, 74–5, 80–4, 90, 110, 211 rights of, see rights, of silence Single Equality Bill 263, 267–8, 329, 384 size-related restrictions 596, 610 skills 293, 303, 405, 494–5 small claims 13, 586 SMP (Statutory Maternity Pay) 154, 531, 533–5, 601–2 SOAD (Second Opinion Appointed Doctor) 423–4 social care 246, 347, 410, 426 authorities 409, 419, 423 Social Care Council 452 Social Development Committee 561, 595 social fund, discretionary 596, 612–13 social housing 567–8, 578, 590 social landlords 567–8, 570–5 social origin 285, 287–8, 330, 513 social policy 400, 402 social security 8, 302, 331, 342, 388, 425, 595–7 appeal tribunals 16, 613, 626 arrangements 596–7 benefits 425, 453, 574–5, 581, 595, 598, 611, 626 expenditure 596 rights 595–626 Social Security Agency 489, 510, 531, 624, 626 social services 162, 452, 469, 471 social workers 72, 414, 417–18, 421, 456–7, 459–60, 462, 465–6, 469 soldiers 36, 41–2, 47–8, 53, 62–4, 96, 197, 205, 212; see also army arrest powers 53 solicitors 15–16, 34–5, 55–7, 76–80, 84, 224, 462–3, 469, 567 solidarity rights 19, 286 SOs (Standing Orders) 120, 580 SPAs (Special Protection Areas) 637 Special Areas of Conservation (SACs) 637 special educational needs, statements of 376, 489, 491, 497–500, 502, 509 Special Educational Needs Advice Centre, see SENAC Special Educational Needs and Disability Tribunal, see SENDIST Special Educational Needs Coordinator, see SENCo special educational needs (SEN) 375–6, 378, 380, 486–7, 489, 491, 494, 496–502, 504

special educational provision 497–501 Special Immigration Appeals Commission, see SIAC Special Protection Areas, see SPAs special schools 376, 484, 486, 496, 509 specific issue orders 437, 460 spouses 85–6, 155–6, 159, 163–5, 168, 434, 436, 598, 615 as witnesses 86 SPP (statutory paternity pay) 533, 602 SSP (statutory sick pay) 534–5 Standing Advisory Commission on Human Rights 6, 271, 311 Standing Orders, see SOs state intervention 412, 417 state pension credit, see pension credit state retirement pension 575, 598, 614–16 statements of special educational needs 376, 489, 491, 497–500, 502, 509 Stationery Office 120, 349 statistical information 95, 99, 115 statistics 34, 78, 100, 116, 249, 296, 322, 346, 404 security situation 34 statutory adoption pay, see SAP statutory assessment 498–501 statutory authority defence 320 statutory bodies 6, 25, 127, 484, 518 statutory curriculum 497, 508–9 statutory duties 8, 161, 184, 270, 274, 284, 330, 418, 427 Statutory Duty Investigations Committee, see SDIC statutory maternity leave 304 statutory maternity pay, see SMP statutory paternity pay, see SPP statutory powers 32, 47, 67, 220, 313, 568, 576 statutory sick pay, see SSP stop and search powers 33, 38, 249–50, 346 Strasbourg Court, see ECtHR subsidiary protection 158 substantial adverse effect 352–4 substantial disadvantage 74, 315, 358–61, 379–80, 502 sufficient understanding, children of 459–60, 462 suicide 132, 246, 253 supergrass evidence 89 superintendents 40, 55, 58–60, 72, 76–7, 99–100, 110 supervision 138–9, 418, 455, 469, 476–7, 521, 539, 603, 605–6 orders 417, 460–2 Supreme Court 9–10, 13–14, 122, 294, 298, 389–90, 393, 404–5, 426 surrogacy arrangement 305, 612 surrogate pregnancy 447 surveillance 41, 80, 85, 243, 245, 248–9, 251–5 covert 80, 245, 253, 255 Surveillance Commissioners 255

Index survivors of the troubles 26–7 suspected terrorists 33–4 suspects 41–2, 44, 46–9, 52–3, 67–9, 71–2, 76–80, 84–5, 472 suspension 110–11, 311, 378, 502, 506–7, 543–4 taking possession of land for the preservation of the peace 205 tax 255, 342, 519, 617 tax credits 596–600, 620–1, 626 taxis 337, 373–5 teachers 266, 318–19, 484, 486, 498, 500, 505–8 Catholic 318–19 Protestant 318 recruitment of 266, 318–19 television 207, 213, 218 temporary accommodation 568, 590, 592–3 temporary release 11, 136–7, 140, 614 for medical purposes 137–8 tenancies 370, 547, 569–76, 579–87, 589, 593 fixed-term 580 introductory 569–71, 573–4 non-rent-controlled 579, 584 protected 13, 579, 582–3, 586 secure 569, 571–4 tenancy, terms 581, 584 tenancy agreements 569, 574–6, 579–84, 587, 589 tenants 371, 537, 547, 565–6, 569–84, 586–7, 589, 600, 609–10 introductory 569–71, 573 private 579–82, 589 secure 569–73, 576 tenant’s death 569–70 terrorism 32, 34–7, 41–2, 48, 52–3, 56–7, 77, 81, 227 definition 34–5 purposes of 35, 44 terrorist detention centres 76 terrorist organisations 35, 138 terrorists 33–4, 37–8, 41, 52–3, 62, 77, 224, 568 suspected 33–4 third party harassment 395, 406 threatening, abusive or insulting words, behaviour or written material 196, 199, 210–11 threats 34, 42, 69, 127–8, 198, 203, 208–9, 225, 229 death 105, 219 to journalists 219 of violence 69, 127, 572, 591 tort 13, 41, 56, 257, 556 torture 2–3, 19, 69, 75, 159, 187, 410, 441, 451 trade organisations 349, 363, 371 trade unions 179, 186, 339, 343, 363, 517–19, 538–9, 550–6, 558 independent 538, 545, 550–1, 553 members 179, 253, 550, 554–5 membership 543, 551, 554–6 representatives 545, 553

675

trafficking 161, 175, 431, 445 victims of 161–2, 175, 445 training 302–3, 324–6, 339–40, 384–5, 452, 454–5, 483, 538–9, 602–3 transfers 139–40, 337, 356, 360, 436, 496, 526–7, 547–9, 553 TUPE 547–9 transport 35, 342, 349, 365, 373, 375, 487, 493, 508–9 transport assistance 490, 492, 509 treatment of claimants 434, 445 treaty-monitoring bodies 3 trespass 188, 202, 243–4, 506, 558, 641 tribunals 293–5, 306–8, 314–16, 318–22, 358–9, 401–5, 416, 511–12, 541–2 first-tier 171–3, 238 independent and impartial 431, 641 Upper 172, 174 trustees 359, 484, 486, 538, 543, 550 TUPE transfers 547–9 UK Border Agency, see UKBA UK government 6, 19, 25, 27, 252, 254–5, 285, 288, 451 UK Ombudsman 25 UK Visas and Immigration, see UKVI UKBA (UK Border Agency) 147, 434 UKVI (UK Visas and Immigration) 147, 149–51, 154, 158, 160–2, 165–8, 171, 173, 447 UN (United Nations) 1–4, 26, 210, 264, 287, 329 unauthorised deductions 519, 555 under-represented groups 303, 324–6 unfair discrimination 1, 288 unfair dismissal 517, 519, 521, 525, 529, 542, 544–5, 549, 551–2 automatic 545, 549–50 complaints of 541, 556 union flag 185, 212 union members, see trade unions, members United Nations, see UN United States, Supreme Court 5 universal credit 153, 595, 620–4, 626 unlawful arrest 50, 115 unlawful assembly 198 unlawful deductions 517, 524–5 unlawful disability discrimination 378, 380 unlawful discrimination 300–2, 304–5, 312, 317, 319, 321–2, 339, 355, 357 unlawful questioning 67–8 unlawful searches, effect 41 unmarried couples 26, 438 unwanted conduct 303, 316, 362, 386, 393–4, 405–6 urine samples 60 VCPs, see vehicle checkpoints vehicle checkpoints (VCPs) 37, 62, 64

676

Index

vehicles 34, 36, 39–40, 43–5, 47, 117, 204, 206, 373–4 searches of 43–4 vexatious complaints/objections 97, 123, 235, 238, 577 vicarious liability 340, 557 victim impact statements 11 Victim Support Northern Ireland, see VSNI victimisation 300–1, 313, 316, 337–8, 350, 362, 366, 376, 379 victims 7, 9–12, 21, 26–7, 331, 337, 440–1, 443–5, 472–3 need for 21 remedies available 21–2 rights 9–27 video links 85–6, 126, 458 video recordings 33, 72, 76, 218, 220, 234 violence domestic 20, 156–7, 165, 431, 439–40, 448, 459 threats of 69, 127, 572, 591 visa application centres 149–50, 165 visa nationals 149–50, 152, 172 visas 149–50, 168 visitors 124, 129, 133, 149, 152–3, 157–8, 167, 334 vocational training 265, 339, 364, 384, 401–2 voluntary grammar schools 484–5 voluntary organisations 7, 45, 466, 469 volunteers 12, 455 VSNI (Victim Support Northern Ireland) 11–12 vulnerable adults 106, 141, 412, 456 vulnerable groups 141, 455 wages 517, 519–20, 524–5, 546 warrants 45–50, 52–3, 58–9, 254, 421, 460, 470 arrest with 49–50 entry with 45–6 entry without 46 WCA, see work capability assessment weapons, offensive 39, 182, 206 welfare, children 161, 436, 453, 456, 459–61, 464, 468–9, 488 Welfare Reform Bill 597, 605–6, 608, 610–11, 618, 620, 624, 626 well-being, economic 244, 254, 431, 639, 641 widowed parent’s allowance 575, 598, 601, 617

widow’s benefits 154, 601 wireless apparatus 42, 44, 47 witnesses 10–11, 17–18, 67, 75–7, 83–9, 104, 112–13, 223–5, 458 women 2–3, 286–7, 291–2, 294, 296, 298–300, 306–9, 531–2, 615 pregnant 305, 442 prisoners 134–5 work 292–4, 355–7, 455–6, 518–22, 525–8, 530–40, 558, 606–10, 616–25 equal 291–2, 294 hours of 520, 525, 527, 538, 623 work capability assessment (WCA) 596, 607–8 Work Programme 595, 624 work-related activity 607, 624–5 work-related requirements 624–5 workers 163–6, 296–7, 306–7, 363, 403, 519, 522–30, 545–7, 550–3 agency 521–2, 524, 536 female 296, 299, 305 older 401, 403 part-time 296, 306–7, 523, 543 workforce 302, 323, 326, 340, 348, 403, 549 working age 595, 605, 609, 620 working days 467, 575, 578, 631 working hours 334, 361, 526, 536, 538, 551 working tax credit, see WTC work–life balance 306 workplace 264, 324, 331, 361, 531, 540, 550, 556, 558 written consent 131, 371, 571, 576 written statements 39, 72, 75, 505, 520–3, 535, 539, 541 WTC (working tax credit) 153, 510, 612, 617–21 YOC, see Young Offenders Centre YOC order 478 young offenders 126, 614 Young Offenders Centre (YOC) 119–20, 129, 448, 471, 477–8 young persons 70, 399, 433, 467–8, 471–2, 474–5, 477–8, 486, 602–3 youth conference orders 475–6 youth courts 458, 470–1, 474, 476, 478, 480