Emergency legislation has existed in Northern Ireland since partition. A government-sponsored review is presently taking place. It is vital that the review should not be clouded by the assumption that the Emergency Provisions (NI) Act 1991 (EPA), or the Prevention of Terrorism Act 1989 (PTA), or indeed any emergency legislation, is necessary to deal with the conflicts in Northern Ireland.
John Rowe QC, who produced one of his reports following the ceasefires in 1994, felt sufficiently assured of this position to state in the report that he was not part of the peace process and would not recommend repeal of the legislation just because it would facilitate that process.
All too often, government-sponsored thinking in this part of the world has lacked depth of understanding and impartiality. It has failed to take on board all sections of opinion, including the legitimately held belief that the emergency powers in present and past legislation can be, and frequently are, counterproductive to creating a climate of trust and faith in the rule of law.
Even if creative thinking is too much to expect, particularly when fears abound about the breakdown in the ceasefire, the UK has ratified and therefore agreed to be bound by various international human rights standards that Parliament would do well to heed.
Instruments such as the European Convention on Human Rights allow states a margin of appreciation in the entering of derogations to treaties when faced with a “public emergency threatening the life of the nation”. But they lay down strict criteria to ensure that any emergency measures introduced should be proportional to the perceived threat. And they insist that each and every single sentence, power and codicil of emergency legislation should be “strictly required by the exigencies of the situation”.
The onus is on the Government to show that each and every curtailment of internationally agreed human rights, is necessary to combat the emergency. And it has to prove that such legislation reflects the essence of emergency by its lack of permanence and basic intent to allow a return to normality as quickly as possible.
The failure to take this on board has resulted in international censure for breach of human rights (ECHR decisions in Ireland v UK, Brogan, McCann, Murray etc or the UN Human Rights Committee's latest findings). The UK can no longer assume that it can rest on its democratic laurels and everything will be all right.
If true democracy in these islands is to be reclaimed and realised in the present day, a change in direction is needed.
Successive UK governments have failed to provide sufficient justification for infringement of basic rights, fuelling the idea that the powers should remain “just in case”.
This flies in the face of international law. Even given the breakdown in the ceasefires, the level of violence has not reached the level of emergency threatening the life of the nation. The irony is that if a public emergency threatening the life of the nation did occur tomorrow, emergency legislation could be re-enacted within hours.
This is the tragedy. Emergency law has become so much part of the fabric of life in the UK in relation to Northern Ireland that the mindset of Parliament has veered away from viewing repressive legislation as anything other than normal.
The remit of the present reviewer, Lord Lloyd, does make specific reference, for the first time, to the need to consider the UK's international obligations. This must involve more than an overview. It remains to be seen whether the task will be accomplished in the necessary vein.
To resolve any conflict, a government must be seen to be acting legitimately. To maintain the moral high ground over paramilitaries, a government must be seen to take its responsibilities seriously. These are not just the responsibilities of national security, but entail a much more embracing philosophy of the utmost respect for the rights of all citizens, including those suspected or convicted of not acting within the law. To ensure respect for human rights, the government itself must not dilute the concept.
If a crime is committed, it should be dealt with as such. Instead, in Northern Ireland, actual or perceived political motivation can result in detention for up to seven days without charge or access to reading or writing materials, incommunicado detention without access to lawyer or family for up to 48 hours, the non-application of PACE, a non-jury trial, and a differential standard for admissibility of alleged confession evidence.
Northern Ireland has been functioning for a number of years under a two-tier criminal justice system. This is damaging to the reputation of UK justice and is not helpful in ensuring that emergency laws remain temporary.
This normalisation process has made forging links with a view to building real peace tenuous to say the least. Given the instability of the ceasefires and the fragility of the situation in Northern Ireland, the question of emergency law remaining on the statute books takes on greater urgency.The Committee on the Administration of Justice is convinced emergency legislation must be repealed and a Bill of Rights enacted to provide a basis for a just, lasting peace in Northern Ireland.