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Rule of Law v National Security: The Big Fight Live

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16 June, 2014
Colin Murray, Human Rights Law, Terrorism Law
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boxing

 

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

This post was first published on Human Rights in Ireland

In his understated way, Lord Justice Gross announced the latest round of the prize-fight that has defined so much of the debate on the role of the legal system in a liberal democracy since the 9/11 attacks (at [4]): “From time to time, tensions between the principle of open justice and the needs of national security will be inevitable.” This morning’s decision in Guardian Media v AB CD once again saw national security, long-running champion interest in the UK legal systems, take to the ring being heralded (at [4]) as “a national interest of the first importance”.

But after decades of ruling the roost in the UK, and in the era of Al Qaeda in which the function of the state to protect individuals within its jurisdiction has been touted more widely than ever before, national security has been rocked in a succession of legal battles. It started in December 2004, in Belmarsh Detainees, when the right to liberty landed the blow that ended indefinite detention without trial for suspected foreign national terrorist suspects under the Anti-Terrorism Crime and Security Act 2001 (New Labour’s flagship response to 9/11). Five years later, in AF (No.3), the right to a fair hearing ultimately emerged victorious from a series of crunch battles with Control Orders (the system of executive-imposed “house-arrest” restrictions which replaced detention without trial). The embarrassing setbacks in the deportation of Abu Qatada saw a plucky combination of the prohibition of torture and the right to a fair hearing run rings around national security interests. Suddenly, under the European Convention principles brought into the UK legal systems through the Human Rights Act 1998, national security was no longer unassailable. The Home Secretary Theresa Mayfumed:

The problems caused by the Human Rights Act and the European Court in Strasbourg remain and we should remember that Qatada would have been deported long ago had the European Court not moved the goalposts by establishing new, unprecedented legal grounds on which it blocked his deportation. I have made clear my view that in the end the Human Rights Act must be scrapped.

Seeing these victories under the banner of human rights, advocates grew in confidence in propounding rule of law principles in the face of national security. And the courts responded. In Binyam Mohammed’s case, after interminable rounds in the High Court and an ultimate show down in the Court of Appeal, the rule of law emerged victorious (at [17]); “the interests of open justice must prevail”. Everyone loves a home-grown winner, not tainted by coming out of the “European” stable. The courts of the UK seem energised by these developments; after all, how could even the Daily Mail question a judicial approach rooted back 799 years to Magna Carta. David Cameron might well rue claims like:

In many ways the Government has a choice between this country’s ancient rights of habeas corpus and the right not be detained without trial; between Magna Carta and the ECHR.

And so last week a battered and bruised national security turned out once again against the rule of law, now touted (at [2]) as “a priceless asset of our country and a foundation of our Constitution”. But national security is nothing if not adaptable; it keeps bouncing back. For none of the above defeats of national security interests can be characterised as a knock out. The courts may have closed certain doors, but every one of the above judgments has opened new windows for national security interests.

Detention without Trial and Control Orders may have gone. TPIMs, the only form of executive measure that the courts are comfortable with signing off as “human-rights compliant” may well be “withering on the vine”, in the words of Parliament’s Joint Committee on Human Rights, because for the security services they require too extensive a level of disclose to restricted individual for too little security benefit (as seen by multiple cases of absconding from TPIMs). Deporting foreign national terrorists may be harder than ever since Abu Qatada’s case. But the criminal justice system has proven entirely open to adaptation to take up the slack. In the words of Professor Clive Walker:

The prime focus of United Kingdom anti-terrorism policy and laws in the aftermath of 9/11 seemed to be on Belmarsh rather than on the Old Bailey – in other words on detention without trial and latterly on control orders. However, the era of executive measures was never exclusive and is fading.

Criminal law responses to terrorism have picked up where executive responses have fallen foul of judicial scrutiny. And this end point is unsurprising; the criminal justice system enjoys a level of legitimacy that special counter-terrorism measures never will. Adapted offences and special police powers can be sold on civil liberties grounds much more easily than detention without trial. In legislation like theTerrorism Act 2006 we have seen offences emerge that are broader in their scope than anything ordinarily expected within the criminal law, like the offence under section 5 of “acts preparatory to terrorism”, where any act, no matter how insignificant, giving effect to a terrorist intention can carry with it up to life imprisonment. Modern criminal justice in the UK has not come closer to the invocation of a thought crime. And the judiciary have not halted this process, indeed they have encouraged it. Lord Hughes, rejecting one challenge to the similarly objectionable section 6 offence, intoned that “the complaint that is made is not about the certainty of the section, it is about its breadth and its breadth is a matter of policy for Parliament.”

Give national security an inch, and its proponents will take a mile. Invite it in to the criminal justice system, and there is a real risk that it will so thoroughly pollute the system that it will poison the very legitimacy that it sought to feed off. That is how, in AB CD, we got to a case where the authorities sought to import all of the benefits of the secret processes they enjoyed in executive measures proceedings into the criminal justice process, where they could be happily married to extended criminal offences. Today’s judgment fends off this possibility (at [21]):

We express grave concern as to the cumulative effects of (1) holding a criminal trial in camera and (2) anonymising the defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified. Suffice to say, we are not persuaded of any such justification in the present case.

And this would indeed be a gross departure for the criminal justice system. The possibility would open up the UK to the possibility of cases like that of Prisoner X, who died in an Israeli prison in 2010, with no possibility for public scrutiny of the fairness of his treatment. Following today’s ruling, the media can name the individuals involved in this case as Erol Incedal and Mounir Rarmoul-Bouhadjar. And yet much of the trial will proceed in closed court (at [14]):

We are persuaded on the evidence before us that there is a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court; for what appears to be good reason on the material we have seen, the Crown might be deterred from continuing with the prosecution.

And so in this case secret hearings will be able to proceed with regard to offences as broad as section 5 of the Terrorism Act 2006; one of the offences with which AB is charged. The trial is slated to commence next Monday in the Central Criminal Court. National Security, bloodied but unbroken, wins on points.

Rights versus Remuneration: The English NHS and Abortion Services for Women from Northern Ireland

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19 May, 2014
Dr Sylvia de Mars, Human Rights Law, Medical Law
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nhs

 

– Dr Sylvia de Mars (Newcastle University)

This post was first published on Human Rights in Ireland

Given that my  research considers the access rights of EU nationals to the English NHS, last week’s England and Wales High Court decision in R (on the application of A & Anor) v Secretary of State for Health didn’t come as much of a surprise, but remains regrettable. There are two dimensions to this case, which dealt with the question of whether or not Northern Ireland residents can obtain abortions with the English NHS free of charge.  The first dimension is a public law one, looking primarily at the organisation and funding of the healthcare services in the United Kingdom, and the second is a human rights one.

In rejecting the claim, the High Court applied public law as it currently stands in England, and though the judgment does not state this explicitly, one would assume that it has done so not least of all because the issue of access to the English NHS has been an increasingly politically sensitive one in recent years.  What few restrictions exist in English law to entitlement to access the NHS, the English courts have in this case attempted to uphold, and they have done so by emphasising that healthcare is a devolved matter:

Health Policy within Northern Ireland, being neither a ‘reserved’ nor an ‘excepted’ matter, is a ‘transferred matter’ pursuant to s 4 of the Northern Ireland Act 1998 and is thus within the legislative competence of the Northern Ireland Assembly. It is accordingly, in the context of the service provision in issue in the present proceedings, for the relevant authorities in Northern Ireland to decide to what extent abortion services falling within the law applicable to Northern Ireland should be provided by the health service in Northern Ireland consistent with the duties imposed upon them under the applicable legislation.

Provisions on entitlement to treatment by the NHS in England are set out in the NHS Act 2006. Under the NHS Act 2006, anyone who is “ordinarily resident” in Great Britain is entitled to use the NHS for free: section 1(3) states that “free” service is obligatory for all those entitled to use it, unless otherwise noted.  An exception is contained in section 175, which entitles the English authorities to introduce additional legislation to recover charges from “overseas visitors”.

The NHS Act 2006 does not define “ordinary residence”.  In order to make the concept workable in practice, Department of Healthguidance on charging overseas visitors directs NHS employees to apply R v Barnet LBC Ex. p Shah when deciding if a visitor is to be charged.  In Shah, Lord Scarman ruled that anyone adopting an ‘abode’ voluntarily and for settled purposes “as part of the regular order of his life”, regardless of how long, would pass an “ordinary residence” test unless said person’s stay in the UK was unlawful.  This ruling was made in the context of the Education Acts, but — as the Department of Health Guidance states — “is generally recognized to have a wider application.”

Key here is where the NHS Act 2006 demands the residence to be.  Unlike the Education Acts, for example, where “ordinary residence” was demanded in the United Kingdom, the NHS Act 2006 demands “ordinary residence” in Great Britain.  It thus explicitly excludes Northern Ireland.  The general reasoning behind an “ordinary residence” requirement in order to access social services is that visitors to the UK should not be entitled to access what are “free at the point of use” services at the expense of the UK taxpayer.  However, as noted, the exception is — in most areas of law — to those not resident in the United Kingdom.  This was raised by one of the claimant’s mothers in A & Anor, who said:

Having now had the opportunity of taking legal advice in England, I understand that publicly funded health care services are intended to be free at the point of use for all UK residents. I feel my daughter has been treated most unfairly, because when she was required treatment in another part of the United Kingdom, she did not get it, and was offered no assistance by the state health care system. If my daughter had had some other health condition, which necessitated her travelling to another part of the UK for treatment I believe that no obstacles would been put in her way and that every effort would have been made to ensure that she was treated in an appropriate NHS facility and had assistance with travel costs. [emphasis added]

As King J points out, this is a misunderstanding of the relevant legislation.  King J, however, does not stress that Northern Ireland is singled out as an exception in primary legislation already; instead, he focuses on the fact that abortion is a “secondary care service”, and these are only provided for local residents, by what used to be Primary Care Trusts (PCTs) and what are now Clinical Commissioning Groups (CCGs).  In short, prior to 2013, funding — as directed from the UK Parliament to the Department of Health, and then distributed to PCTs — for secondary care services such as abortion services was again proportionate to “local” populations in areas, and the English NHS (through local PCTs) was entitled to charge for these services unless they are provided in an emergency (as emergency treatment, regardless of where in England it takes place, is always free) or unless the service is provided for what is termed a “qualifying patient”, as in a patient with serious mental illness as per s130C of the Mental Health Act 1983.  Consequently, the law directed the English NHS to charge anyone who is not locally resident for secondary care services, including abortion access, unless a specific exception applied to them.

The law applicable to CCGs is slightly different, as is summarized well in the judgment:

[T]he CCGs are in a slightly different position than were PCTs vis a vis the provision of services to persons ordinarily resident in Northern Ireland. Some services must be provided based on the presence in the CCGs’ area; no such duty applies to other services vis a vis persons ordinarily resident in Northern Ireland (and Scotland and Wales). But there is discretion to commission services, including abortion services, for the benefit of all potential patients, including patients ordinarily resident in Northern Ireland. In this way, decision-making as to the appropriate provision of certain services has been devolved from the Secretary of State to the level of CCG.

As King J ultimately finds in A & Anon, the current position of the NHS Act 2006 is that CCGs can provide abortion services (for free) to Northern Ireland residents if it wishes to, but there remains no obligation to provide these services free of charge.  Rather than accept that, as abortion is (outside very restricted circumstances) illegal in Northern Ireland, the English NHS has a duty to provide abortion services to those “ordinarily resident” in other parts of the United Kingdom, his ruling focuses very explicitly on the fact that the Health Secretary’s general duty is to the people of England, and that the English NHS cannot be held responsible for the fact that the devolved authorities in Northern Ireland impose much more severe restrictions upon the availability of legal abortions in Northern Ireland.

From a functional perspective, there is little to fault in this conclusion.  Health care is not only a devolved matter, but it has now even withinEngland, become a “local” matter.  Financially, the centralized mechanism whereby health services across the United Kingdom are funded is only sustainable if block grants reach CCGs (or the prior PCTs) on the basis of how many residents are likely to need services.  This stands separate from the Northern Ireland position on abortion, and consequently the predictable stream women, resident in Northern Ireland, seeking abortions in England; as a matter of public law, the local English NHS simply holds no responsibility to provide any secondary care that is “free at the point of use” for anyone not ordinarily resident in their particular catchment area, unless very specific exceptions apply.

Acceptable as this functional, “respectful of devolution” reasoning is likely to be to those concerned about the English NHS’s budgetary crisis, however, it ultimately hides behind devolution to ignore the fact that a substantial number of women who have UK citizenship cannot benefit from human rights law applicable within the United Kingdom as a whole.  As the Abortion Act 1967 does not apply to Northern Ireland, the claimant attempted to argue that denial of free access to the NHS to obtain this abortion violated Article 14 (on non-discrimination) of the European Convention of Human Rights, by way of interference with her Article 8 (right to private life) right:

The claimant would say that she is treated differently from all other citizens of the United Kingdom as regards access to ‘state funded abortions’ because unlike citizens ordinarily resident in England, Scotland or Wales, she has no option of returning to her place of ‘usual residence’ in order to access a state funded abortion…

King J was very quick to dismiss this argument, and he does so in very formalistic terms.  He ruled that there was no such thing as a right to a “state funded abortion”; rather, that Article 8 and 14 read together require residents of Northern Ireland to be able to access abortions in England as any other UK citizen is.  This duty, he concluded, the Secretary of State fulfilled, as the claimant did manage to obtain an abortion in England, and her right to do so was not legally impeded.  What services the NHS provides for free is, in short, not affected by the ECHR; this is a matter of contracting state policy, and not specific to abortion as such.  While technically not untrue, this position does skirt the reality that all healthcare services in all parts of the UK are provided “for free” for those eligible to use them, meaning that the right to obtain such a service privately is at best a half-right — it is not one that anyone outside of Northern Ireland would ever need to make use of, but this is ignored by the High Court.  Similarly ignored is that not all Northern Ireland residents would be able to afford a private abortion,which flies in the face of the philosophy underpinning the National Health Service: the NHS is there to provide treatment on the basis of need, regardless of ability to pay for it.

Additionally, and obiter, King J suggests that there is no “discrimination” in this case at all, in the sense that the residence requirement for secondary care services stems from the objective reasonable justification  of the “division of responsibility for health services within the four jurisdictions of the United Kingdom.”  In other words: this was not a personal ruling, it was a pragmatic one given that healthcare is a devolved matter, and the only way around it would be for the claimant to contest the Northern Ireland’s law on abortion under the ECHR … but this was not what the claimant did.

One way to view the final point is as a nudge for the claimant to challenge the Northern Ireland law on exactly those grounds; it reads almost as an expression of regret, whereby King J indicates he cannot simply ignore the public law in order to rule on the human rights issues.  However, that will be of little consolation for those interested in seeing women’s rights protected in the United Kingdom as a matter ofnational law, rather than international law — and indeed, the latter appears to be what the High Court is very unwilling to do.  Given that the post-2013 restructuring of the NHS has granted CCGs the power to grant access to free abortions as a matter of discretion, the door to actually use human rights to support the ability of women from Northern Ireland to obtain abortions in the United Kingdom where this is legally permissible as a state-funded service appears to have been wide open in this case; but, while highlighted, this was not taken advantage of, nor was the Secretary of State instructed to take this step by simply legislating so that CCGs made services not available in onepart of the United Kingdom available to all those resident in that part in other parts of the United Kingdom.  Ultimately, the four parts here do not make a whole, and from a human rights perspective, this is at best regrettable.

As it stands, the grounds for further action are clearly there — but so far, the High Court remains unwilling to rule in a way that clearly informs the Northern Ireland Assembly that its attitude towards abortion is unsustainable in a United Kingdom that respects the human rights of its female citizens.

Female Genital Mutilation: A page turned after three decades on the books?

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27 March, 2014
Criminal Law, Law & Equality, Law & Practice, Nikita Beresford
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female

Source: Road sign campaign against Female Genital Mutilation in Uganda by Amnon Shavit

-Nikita Beresford, (LLB Law, Newcastle University)

The first ever prosecutions for female genital mutilation (FGM) have been announced, 28 years after the offence was first specifically criminalised under Prohibition of Female Circumcision Act 1985. The act was replaced in 2003 with the Female Genital Mutilation Act without any prosecutions ever taking place. This decision is a positive step to combatting honour-based violence in Britain; it does not excuse the shocking record of past decades.

 

FGM is not a small-scale or trivial crime. The procedure can involve the full or partial excision of clitoris, labia minora or labia majora, and the subsequent sewing up of the vulva region, with only a small whole left for urine and menstrual blood. In the most extreme cases, women have to be cut open to allow for intercourse and childbirth, and are subsequently re-sewn. The physical risks include blood loss, shock, infection, urinary infections, abscesses and difficulties in passing menstrual blood, having intercourse, or giving birth. A 2007 study estimated that 23,000 girls resident in the UK under the age of 15 were at risk, while almost 66,000 women were already victims. More recent research indicates the number of at risk children could be much higher, more than double what was previously thought.

 

It is shameful that, given the number of potential victims, it is only now that the CPS has found a case in which it believes there is a reasonable chance of conviction. Offences of this nature are notoriously difficult to detect and investigate, with witnesses and victims unwilling to testify, and very few referrals being made to the police. But I share the sentiments of other bloggers that with so many instances of the crime, and the genital mutilation of young women itself being evidence of (at the very least) parental complicity, it is inconceivable that it has taken almost three decades to assemble enough evidence to go ahead with a prosecution. Hopefully the upcoming proceedings mark a watershed in public awareness and prosecutorial discretion, and in the future preventing and punishing FGM will be given the status it deserves.

 

The hearings of Dr Dharmasena, charged with committing an act of female genital mutilation, and Hasan Mohamed, who faces a charge of intentionally encouraging FGM, and a second charge of aiding, abetting, counselling or procuring an act of FGM, begin at Westminster Magistrates’ Court on April 15.

 

More information:

Forward UK – Key Issues – FGM

NHS Choice – Female Genital Mutilation

 

 

 

Domestic Abuse: Time for A Specific Offence?

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19 March, 2014
Criminal Law, Lewis Bedford
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USMC-04952

– Lewis Bedford (LLB Law, Newcastle University) l.bedford@newcastle.ac.uk

The highly anticipated private members Bill, purporting to overhaul the law underpinning domestic abuse, is set for second reading early June this year. The Bill intends to create a separate offence running in parallel to the current Offences Against the Persons Act 1861.

Elfyn Llwyd, sponsoring the Bill, hopes the proposals will bring domestic abuse laws up-to-date by codifying the cross-government definition of domestic abuse adopted last year; a definition that the current law does not fully accommodate. If successful, the Bill will criminalize all elements of domestic abuse including what has been coined coercive control (ibid):

[A]n act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim

If the Bill is passed, perpetrators will find themselves facing a custodial sentence of up to fourteen years. Moreover, under the judiciary’s discretion, there is a possibility that the accused must attend a domestic violence rehabilitation program whilst in prison.

A number of measures are also being proposed in retaliation to the perceived justice gap and attrition problem inherent in many domestic offences. Concerns have been raised as to why cases often fall through in the prior stages to prosecution.

WomensAid underline how victims, predominantly women, may feel pressured into dropping charges post-incident in order to maintain a family’s reputation.  Additionally, particularly among Minority Ethnic communities, women often feel ostracized within their local areas due to ‘allegations of disloyalty or collusion’. Only making matters worse, the long costly nature of the court process leaves victims at risk of suffering further domestic abuse whilst waiting for cases to be heard. Arguably, because of these hurdles, victims are less inclined to report domestic abuse. Statistically, only 20% of rapes or sexual assaults are reported to the Police. Less serious cases of domestic abuse also share similar statistics.

Llwyd, hoping to address these issues, stated how the Bill intends to tighten up the investigatory process, create duties upon the police force in respect of domestic abuse call-outs, and provide statutory training in relation to such cases. However, with the Bill being what Llwyd calls a ‘working draft’, what these provisions specifically entail is yet to be specified.

Jamie Doward believes the Bill will be similar to its US counterpart, the Violence Against Women Act (VAWA). By strengthening penalties for re-offenders, creating dedicated hotlines, and ensuring police responses, the Act hoped to tackle similar issues that are faced in England and Wales today. In light of the Bureau of Justice’s statistics, the Act was, in the most part, successful. After the Act’s inauguration, intimate partner violence decreased by 64% – a statistic VAWA advocates have been keen to underline.

It’s supposed success was accredited to a combination of factors. Most notably, however, the Act has sectioned funds for training in how to cope with domestic abuse call-outs for over half a million law enforcing personnel every year. With Llwyd pointing towards training himself, it seems England and Wales may make similar provisions.

Lanette Ruff concluded in 2012, that training does matter. Ruff explored the responses of police officers with regards to domestic abuse call-outs in Fredericton, Canada. By drawing upon statistics compiled both before and after training, Ruff concluded that officers were more likely to report crimes once training had been completed. As somewhat of a corollary, guilty verdicts also marginally increased. Ruff found particularly promising how ‘ongoing training allows police officers to reflect on the importance of treating each domestic dispute call like it is their only opportunity to provide intervention’. Indeed, there has been a pressing concern that some forces in the UK are harboring a ‘culture of disbelief’ with regards to the more serious domestic offences. Active participation in training would go some way to correct this injustice (ibid):

[T]raining provides… an opportunity to reflect on their own biases and stereotypes… and how their views can have an unintended impact on their response to accused and victims

On the other hand, Ruff’s analysis also found that post-training, a majority of officers responded in a similar fashion to how they always had. Police still seemed reluctant to contact a temporary shelter or mention third party help centers.

Furthermore, Kate Pickert suggests that the fall in domestic violence in the US is more likely attributable to the general nationwide drop in domestic abuse, irrespective of the Act being implemented. Pickert believes that rather than shortening the justice gap, the VAWA spurred a counterproductive culture change in law enforcement. She believes particular training has the capacity to foster a culture whereby police are more willing to arrest on arrival. As such, women may be discouraged from reporting domestic violence in fear their partners will be arbitrarily detained in custody. Indeed, it is generally held among commentators that victims of domestic abuse are often dependent, particularly financially, on their abusive partners. If such is the case, foresight of an arrest surely works as a disincentive rather than encouraging women to speak up.

The Bill’s proposed obligations on officers might also prove ineffective. Llwyd, in his ten-minute motion, made little reference to what obligations police forces in England and Wales would be subject to. Catherine Baksi interprets Llwyd as proposing a duty to investigate.

Under such a scenario, officers will most probably be obliged to investigate if they hold a reasonable suspicion that the supposed offence had occurred. In most cases, the accused will unreservedly deny any accusations, leaving any reasonable suspicion grounded solely on the victim’s testimony. Officers will find themselves faced with little option but to side with one or the other; accused or accuser. The bottom line is, those making callouts will be caught in an uncomfortable and cost-ineffective situation. Furthermore, having to deal with a barrage of similar in-conclusive scenarios, officers may become desensitized towards those less serious, non-evidential abuses within the home that the Bill aspired to address. Indeed, this may work as a catalyst for the ‘culture of disbelief’ [quote other article here] some commentators are keen to underline.

Clearly, the proposals may prove ineffective in tackling the issues faced by the law related to domestic abuse. Some have questioned whether reformulating the law is even necessary with the Offences Against the Person Act and subsequent case law already providing adequate legislative underpinning. Instead, focus should be placed more readily upon cutting domestic abuse before it happens, rather than finding justice for victims. Personally, however, I believe reforms should be welcomed with open arms.

Providing a separate offence will not only clarify what domestic abuse entails, but also provide a platform whereby change, both legal and social, can be obtained. The criminal law undoubtedly holds an overwhelming ideological and discursive power among those subject to it. By coherently setting out the offence, Parliament sends a strong moral message about intimate partner abuse. In effect, the law can be used as a tool to further the changing attitudes and ideals in relation to domestic abuse. Indeed this is increasingly important for those offences that don’t ‘leave scars or bruises, but [are] every bit as debilitating’. Such offences are relatively new within the sphere of what constitutes domestic abuse; society must be reminded that coercive control should not, and will not, be tolerated. Nevertheless, it must be borne in mind that change can go two ways. Hopefully, those drafting the particular Bill are appreciative of how particular proposals can prove counterproductive, not just for victims but society as a whole.

What the Dogs in the Street Know: On the Runs and Hanging Peter Hain Out to Dry

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14 March, 2014
Colin Murray, Constitutional Law
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outside-in

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

This post was first published on Human Rights in Ireland

“In Northern Ireland”, Peter Hain opined in his autobiography Outside In (pictured left), there is “always a crisis around the corner” (p.323). There is more of a feel of truth than truism to the statement, especially as the on-the-runs scandal dominated recent headlines (before being eclipsed by developments in the Crimea). I’d be surprised if a good few Irish viewers watching the BBC 2 drama miniseries 37 Days, on the slide towards the First World War, haven’t felt there is something queasily apposite in the scenes where the UK Cabinet’s attention is wrenched away from the “muddy by-ways of Fermanagh and Tyrone” and towards a developing European Crisis.

As I’ve previously highlighted on humanrights.ie, Northern Ireland has repeatedly seen victims’ interests cranked up or down depending on the aims of the political parties. As the n-the-runs scandal broke, the DUP leader Peter Robinson quivered with outrage at the injustice of “amnesties”, whilst Gerry Kelly’s television interviews stuck rigidly to the acronym “OTRs”, perhaps hoping people would lose interest in his review of the technicalities of why it was inappropriate to describe the assurances given to on-the-runs as amnesties. But in this case the DUP’s readiness to hang Peter Hain, Northern Ireland Secretary from 2005-2007, out to dry for supposed misleading of Parliament seems particularly vindictive.

Hain’s establishment of a seven-person PSNI team to evaluate whether it was possible to inform individuals linked to historic offences that they were now not wanted by police in the UK (Operation Rapid) has been firmly in the spotlight since news first broke on 25 February of the collapse of the prosecution of John Downey for his alleged role in the IRA’s Hyde Park bombing of 1982. The problem, as Mr Justice Sweeney explained, was that the PSNI investigation had not so much been Operation Rapid, but Operation Hasty (at [173](19)):

At the time of Operation Rapid’s review of the defendant’s case, [the PSNI] was aware that the defendant was wanted by the Metropolitan Police in relation to the Hyde Park bombing, but failed to pass that on to the DPP(NI).

On the strength of this review, Northern Ireland’s Director of Public Prosecutions certified that Downey was not wanted in the UK. Downey’s subsequent letter from the Northern Ireland Office, informing him that he was not wanted, had seemingly not counted for much when he had been arrested at Gatwick on route to a holiday in Greece in May 2013. But Mr Justice Sweeney effectively found that Downey had a legitimate expectation that he would not be subject to arrest over the Hyde Park bombing if he came to the UK (at [173](8)):

The standard letter did not amount to an amnesty as such. However, its terms (and in particular the references to the PSNI and the Attorney General) were intended to and did make clear that it was issued in the name of the Government and that the assurances within it could be relied upon with confidence as meaning what they said, namely an unequivocal statement that the recipient was not wanted ‐ with the obvious implication from the remainder that thus the recipient would not be arrested or prosecuted unless new evidence came to light or there was a new application for extradition.

Hain’s effort at a quiet “resolution” of the on-the-runs issue, so thorny that it officially remained part of the Haass Talks agenda, was now very much in the public domain. Cold comfort that, as the judge affirmed, he could not talk account of the impact of his decision on the peace process (at [168]).

This is not the first time that the potent mix of judicial authority and conflict resolution in Northern Ireland has landed Hain in political trouble. But unlike the unfortunate passage in Outside In in which he questions Lord Justice Girvan’s impartiality and speculates over whether the judge had reached his decision over Bertha McDougall’s appointment as Victims’ Commissioner in a fit of pique at property tax reforms in Northern Ireland (p.333), at least Hain has yet to question Mr Justice Sweeney’s integrity. He has, however, been insistent that the issue was not hidden from Parliament. These claims drew a caustic response from the Alliance Party’s David Ford:

I’ve heard Peter Hain say “I have stood up in the House of Commons and said that this has to be addressed”, as if this was somehow was saying “this is how we’ve addressed it”, including the letters. So I think he needs to examine his precise background and perhaps that’s something a judge will be doing over the coming months.

Everyone seems to have jumped on the Blame-Hain Game. Even Labour’s shadow Northern Ireland secretary, Ivan Lewis, has called the John Downey letter a “catastrophic error”, for which he offers an “unequivocal apology”. Just as cutting is Lewis’s air brushing of Hain out of the peace process picture in his letter to the Belfast Telegraph, expressing his pride instead in “what people like Tony Blair, Mo Mowlam and Jonathan Powell … did so under the banner of a Labour Government”. Ouch.

Hain has long admitted to a love of the bargaining process, and a reluctance to let an issue sit, even where caution may be wise: “There are ministers who prefer a quiet ride and manage the in-tray without changing anything, and I never saw myself as one of those” (p.332). Perhaps it is this wheeler dealing, so useful on the ground in 2005-2007, which makes it so easy to ensnare Hain today (and why legal processes in particular have left him so uncomfortably on the spot). But this really feels like hanging the (manifest) faults of the peace process on one person’s shoulders. It wasn’t just Peter Hain, who suffered an addiction to crisis talks and back-room deals. Most of Northern Ireland’s political elite stand implicated alongside him.

And whatever temporary bounce the DUP currently see in the polls, the reckoning from this scandal may well be yet to come. Although on-the-runs play no part in Hain’s autobiography, the prominence of issues surrounding former IRA members in the run up to the St Andrews’ Agreement are plain to be seen. Discussing the suspension of Sean Kelly’s licenced release in 2005, Peter Hain claims that “DUP leaders, often uncannily well informed from within the police, knew all about it well before I did” (p.324). The scandal has all the feel of a “dogs on the street” issue in Northern Ireland. The importance of the on-the-runs issue to Sinn Féin before the St Andrews Agreement was no secret. Equally, it was evident that no arrests were being made or extraditions sought after St Andrews. The missing link did not take much effort to fill in, even had those involved had been discrete in the interim. And they haven’t. Back in 2009 Jonathan Powell set out in his account of deal-making in Northern Ireland, Great Hatred, Little Room: Making Peace in Northern Ireland, that the DUP leadership had accepted the deal and made hay from it for their own purposes:

They said they could accept the implementation of the unpopular undertakings we had made under the Joint Declaration on OTRs as long as Tony wrote to Paisley making it clear that these concessions had been agreed during David Trimble’s watch, not theirs.

This makes the DUP’s ratcheting of the tension on this issue harder to understand, whatever the short-term gains of being seen, as David Cameron put it, to be willing “to unpick or call into question all the difficult decisions that were made” in negotiating a settlement to the Troubles. Mr Justice Sweeney may have vindicated “the public interest in holding officials of the state to promises they have made in full understanding of what is involved in the bargain” (at [175]), but an inquiry will illuminate not only official actions but the approach of Northern Ireland’s politicians towards them. For if the judicial inquiry into the on-the-run letters does reveal widespread knowledge of the scheme in the higher echelons of the DUP, and gives Powell’s claims the imprimatur of judicial legitimacy, the issue will very quickly rebound upon them.