World Human Rights Day 10th December 2015

The UK government, by signing treaties or voting at the UN or European institutions, has committed itself to abide by many international human rights standards. Those standards cover a range of issues such as the right to freedom from torture, the right to freedom from discrimination, womens’ rights and childrens’ rights. Some of these standards are binding and some are aspirational.

Those bodies and their work may seem far removed from ordinary life in Northern Ireland but the values they set are often minimum standards a government should guarantee to its people. They provide an internationally agreed yardstick by which government action and respect for rights can be measured. They can be used to hold our politicians to account – most notably in the courts – and allow an individual to take on the might of a government in circumstances if their human rights have been breached.

The possibility of such legal challenges is one of the great trademarks of a democratic society and a fundamental protection of the rule of law. It was recognised and active long before the UN and European institutions were created. It is also often the cause of much controversy when an unpopular person asserts their rights; recall the controversy around the extradition of Abu Hamza to the US where his detention there could amount to inhuman treatment.

Human rights cause additional conflict where there is a conflict of rights such as in connection with the “flag protests” here, or where an unpopular or controversial cause is asserted, such as voting for prisoners.

Of course the need for basic human rights is perhaps most clearly seen in the context of war. The conflict in Syria has shown how people have fled for their lives from a society where the rule of law has broken down and respect for human rights has been abandoned. When thinking about the impact of human rights in Northern Ireland we need no more than look at cases taken to the European Court of Human Rights during the “troubles” in which violations of human rights were found in connection with ill-treatment of detainees, access to legal representation in police detention and the investigation of deaths caused by the security forces.

While a means of dealing with the past has yet to be agreed, the debate on the investigation of deaths during the troubles has been centered around the right to life guaranteed by Article 2 of the European Convention and the Human Rights Act 1998. The HMIC criticism of the work of the Historical Enquiries Team used the Article 2 standards to assess the HET procedures and the Police Ombudsman has also found police work to have fallen short of the Article 2 standards.

However the impact of human rights can also be seen in the day to day work of our courts here. The system is underpinned by standards of fairness to achieve all manner of outcomes which range from:

1. preventing the removal of children from their family home when it is not warranted to ensuring that children are removed from their family home when they are in danger
2. from ensuring that people charged with a criminal offence get a fair trial and the innocent are not convicted guaranteeing that those who are guilty of criminal offences are prosecuted and punished
3. someone can claim damages for loss including injuries caused by the actions of another
4. ensuring that such claims are not successful where the defendant is not at fault

It is not the day to day work, but it is the individual cases specifically relying on human rights that receive most media coverage. Most recently we can point to the decision of the High Court that the failure to provide for abortion in Northern Ireland for cases of fatal foetal abnormality or where the pregnancy is the result of a sexual crime is a violation of a woman’s human rights. The High Court is also currently considering two cases concerning the failure to provide for same sex marriage in Northern Ireland. Both issues are highly controversial in this jurisdiction and have been the subject of much heated debate.

While human rights have in some respects divided public opinion and created controversy, they are a reflection of the issues facing the society in which we live. The European Convention for the Protection of Human Rights and Fundamental Freedoms refers to a: “profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend”.

So today, on World Human Rights day, the Bar of Northern Ireland celebrates the fact that we live in a relatively peaceful society when so many are fleeing their homes and homelands due to war. We celebrate the fact that we live in a society where there is a functioning justice system (imperfect as it is). We celebrate the fact that there is an active and lively discourse around human rights, whatever the source and content of those rights. And we celebrate the fact that we have the freedom to disagree during such discourse. That, in itself, is something to celebrate when we remember the many countries where freedom of speech and freedom of expression are curtailed.

Gerry McAlinden QC, Chairman of the Bar Council