Human Rights in Irish Legal History: Mallinder on the 1969 Amnesty in Northern Ireland

Over the next three weeks a number of our regular contributors and guest bloggers will consider key events in Irish legal history which have had an impact on the political institutions in place in Ireland and in particular upon questions of human rights. The first guest post in this series is contributed by Dr Louise Mallinder, a lecturer in human rights and international law at the Transitional Justice Institute, University of Ulster. It explores the attempts by the Stormont Parliament to institute amnesties for particular crimes in the late 1960s and their role in the descent towards The Troubles.

For millennia, amnesty laws have been used across the world by governments whose legitimacy and authority have been threatened by rebellions and civil unrest (See eg Robert Parker, ‘Fighting the Siren’s Song: The Problem of Amnesty in Historical and Contemporary Perspective’ (2001) 42 Acta Juridica Hungarica 69). They have been used in the midst of violence as counter-insurgency measures or efforts to diffuse tensions. They are also a common feature of peace agreements (For examples of peace agreements containing amnesty provisions, see the Transitional Justice Institute/INCORE Peace Agreement Database). Indeed, Article 6(5) of Additional Protocol II to the Geneva Conventions 1977, which is the only international human rights or humanitarian law treaty to explicitly mention amnesty laws, calls upon state parties to enact the ‘broadest possible amnesty’ at the end of non-international conflicts. The rationale for this provision is that an amnesty is a necessary prerequisite to encourage combatants to surrender their weapons and reintegrate into society, and that in contrast efforts to pursue retribution could risk further inflaming tensions. However, as was evident in Northern Ireland during the Consultative Group on the Past’s public consultations, amnesty laws are often strongly opposed by victims’ groups and human rights activists (Philip Bradfield, ‘Victims hit out over talks on amnesty’ Newsletter (17 January 2008); Chris Thornton, ‘“Don’t mention the war”, 2,000 letters tell Eames’ Belfast Telegraph (21 February 2008)).

This opposition argues that amnesty laws violate victims’ rights and risk undermining the rule of law (for a more detailed discussion of the international legal framework relating to amnesty laws and the arguments for and against their use, see Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Studies in International Law, Hart Publishing, Oxford 2008)). Such debates often overlook the fact that during the Northern Irish peace process there have been several ‘amnesty-like’ policies for encouraging disarmament, incentivising truth recovery and for releasing political offenders from prison. In addition, as this post will explore in relation to the 1969 amnesty, amnesties laws have been used in Northern Ireland’s past and have even benefited individuals who have opposed amnesty measures in the peace process (See the comments of Ian Paisley Sr, pictured above, during House of Commons debates on 13 October 2005).

In May 1969, the new Northern Irish Prime Minister, James Chichester-Clarke, decided with the support of the Attorney General and his cabinet at Stormont to introduce a general amnesty for ‘events associated with, or arising out of, political protests, utterances, marches, meetings, demonstrations’ occurring between 5 October 1968 and 6 May 1969 (Northern Ireland Information Service Press Release, 6 May 1969). This amnesty was an executive decision rather than enacted legislation. According to the Attorney General, it applied to criminal proceedings that were pending, any future proceedings, the collection of fines already imposed, and provided for the remission of sentences for those already convicted (Northern Ireland Information Service Press Release, 6 May 1969).However, the Attorney General specified ‘that proceedings would be taken against any of those persons concerned in any way with acts of sabotage who could be brought to justice’ (Northern Ireland Information Service Press Release, 6 May 1969).

The amnesty was introduced within a context of growing civil unrest and aimed to de-escalate the rapidly escalating conflict, or in the words of the then Prime Minister, to ‘wipe the slate clean and look to the future’ (Northern Ireland Information Service Press Release, 6 May 1969). It had a wide application to all criminal offences associated with the demonstrations, including attacks on civilian homes, but excluding ‘acts of sabotage’. It was designed to cover both civilians and members of the Royal Ulster Constabulary, and it was unconditional. Among those released from prison in accordance with the amnesty were Major Ronald Bunting and the future First Minister, Ian Paisley.

The release of Mr Paisley, who had already been convicted and was serving part of his sentence (According to the papers from the time, Paisley apparently chose to be imprisoned rather than sign a bail bond.), was perhaps the most contentious issue for the cabinet when debating the amnesty, as they viewed him as too much of a security risk. Stormont Cabinet papers from the time record that after other prisoners had been released under the amnesty, Ian Paisley wrote to the Stormont government demanding that he and Major Bunting be included in the amnesty. Prime Minister Chichester Clarke described the ‘threatening tone of the letter’ as ‘deplorable’, and argued that ‘if the Paisley faction returned to the streets, the entire story of street agitation might be repeated’. Despite these reservations, Paisley was eventually released under this amnesty. However, unfortunately, this amnesty policy failed to stem the violence and it was soon followed by the outbreak of The Troubles.

Indefinite inclusion on the Sexual Offences Register – R and Thompson v Secretary of State for the Home Department

In R and Thompson v Secretary of State for the Home Department the UK Supreme Court upheld the decisions of the Divisional Court and the Court of Appeal that inclusion on the Sexual Offences Register for the duration of an offender’s life was in breach of the ECHR. Statutory notification requirements for sex offenders were first introduced in the UK by section 1(3) of the Sex Offenders Act 1997, later amended by the Criminal Justice and Courts Services Act 2000. These provisions were repealed, and now, section 82 of the Sexual Offences Act 2003 imposes a duty on anyone sentenced to 30 months’ imprisonment or more for a sexual offence to notify the police of where they live and of any travel abroad. There is no right to a review of these notification requirements, and they endure for “an indefinite period”, as the Act terms it, which is essentially the remainder of a person’s life.

The respondents, R and Thompson, sought judicial review, contending that such absence of a right of review breached their right to privacy protected by Article 8 of the ECHR. In the Supreme Court, Lord Phillips emphasised that the core of the case was whether the interference with offenders’ Article 8 rights is proportionate, given the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. He focused on three questions: “(i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) To what extent would that value be eroded if the notification requirements were made subject to review?” (para. 41).

He acknowledged the necessity for the authorities to be aware of the location of persons convicted of sexual offences that are being actively managed or supervised, noting that this level of supervision is determined, in part, by the risk of reoffending they pose (para. 45). When a person is subject to lifetime notification requirements but no longer poses any significant risk of committing further sexual offences and this is demonstrably the case, Lord Philips felt it would be pointless to maintain notification requirements given the incursions on Article 8, and indeed from a pragmatic sense felt it overburdened the responsible authorities (para. 51). This is an interesting and logical mix of principled and practical argument. Lord Phillips, at para. 57, concluded that “there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified.” He emphasised the viability of review in other jurisdictions, including Ireland, and noted that “This does not suggest that the review exercise is not practicable.”

In Ireland, s 8(3)(a) of the Sex Offenders Act 2001 requires notification for “an indefinite duration” if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for life or for more than two years, but s 11(1) allows for a court application to discharge this obligation on the ground that the interests of the common good are no longer served by his or her continuing to be subject to them. However, such an application cannot be made before the expiration of ten years from the date of the person’s release from prison.

Despite some predictable media coverage (see the Sun, “Rapists win new legal rights”), the decision is narrow in scope, and concerns the lack of review only rather than compromising the legitimacy or legality of the Register itself. Indeed, Lord Rodger emphasised that he saw “no basis for saying that, in themselves, the notification requirements, including those relating to travel, are a disproportionate interference with the offenders’ article 8 rights to respect for their family life, having regard to the important and legitimate aim of preventing sexual offending” (para. 64).

The Murder of Toyosi Shittabey and Racial Tension in Dublin

Some weeks ago (on Good Friday, in fact) a 15-year old boy was killed in Tyrellstown, Co Dublin. Toyoshi Shittabey was walking home from the swimming pool when, it is reported, he and a friend were subjected to a racist verbal assault. It has been reported that while Shittabey and his friend walked away from the scene, the assailants went to a house, acquired a knife, followed the youngsters to their car, and stabbed Shittabey in the heart. The Gardaí have charged one young man with manslaughter. Although there has been a huge public outpouring of grief and solidarity with the family of Toyoshi Shittabey and with the Nigerian community in Tyrellstown in the wake of the stabbing, this murder exposes potentially deep racial fault-lines in Irish society and poses difficult but important challenges for the Gardaí. It also poses difficult questions for the criminal law in this jurisdiction.

The Gardaí’s investigation has not officially ended, and it is possible that the final charge will in fact be murder and not manslaughter, but the investigation of this crime takes place within a palpable atmosphere of racial tension and poses challenges that one hopes the Gardaí will be able to face. Should it come to that point, the sentencing process will also be challenging for the court. If it is established in the course of the trial (whether that is a trial for manslaughter or for murder) that this homicide was racially motivated, ought that to be taken in to account in the sentencing decision? We previously discussed the lack of hate crimes legislation in Ireland here, and this may well be a case that helps us to gauge how well our criminal justice system can calculate prejudice in sentencing without specific law in this relation. However, the killing of Toyoshi Shittabey is not only a challenge for the Gardaí and the Courts; it is a challenge for Irish society in and beyond Tyrellstown.

The Labour Party’s “One Ireland” and a Constitutional Convention

Last night Éamon Gilmore gave the leader’s address at the Labour Party’s annual conference. Entitled ‘One Ireland’ the conference has had a distinctive emphasis on moving forward, as a country, away from what is conceived of as broken or corrupt and towards a more mature political life in this jurisdiction. The Gilmore speech, which can be watched in full here or read here, was extremely strong on this theme and—regardless of the colour of one’s politics—is worth watching or listening to as an exercise in oratory and speech writing. What struck me in particular, however, was the proposal by Gilmore that there would be a constitutional convention with a new constitution being ready for enactment in 2016 (at the centenary of the 1916 Rising).

I have written before on HRinI of my anxiety about populist constitutional reform. What Gilmore suggested seems to have been something at once more radical and less populist than what we have seen proposed by Fine Gael recently. Gilmore suggested that we would establish a constitutional convention made up of experts and a randomly selected portion of the community (he did not mention how large the sample would be) to debate and propose new constitutional structures. The justification given for this was that the Constitution is a document written in the 1930s for the 1930s when there was considered to be one Church in Ireland and one role for women (I am paraphrasing but, as you will hear if you listen to the speech, not by much). Similar themes were recently in evidence at the excellent political cabaret, Leviathan, which suggested a new Constitution and Second Republic earlier this year. Fine Gael’s New Politics which we have written about before suggests some major constitutional reforms but does not suggest a whole-scale redrawing of the Bunreacht.

Landy on the Children’s Rights Referendum

In response to an article written by Mr. John Waters, (Irish Times, Feb. 19 2010), guest contributor Fergal Landy takes a different view. It is of utmost importance that Mr. Waters article is read before Fergal’s contribution. This article can be accessed here.

John Waters, opinion and analysis 19.02.10, has outlined his view on the proposed referendum on children’s rights.  Mr. Waters is entitled to his view and the debate in relation to the proposed changes should be carried out in an open and inclusive manner, my declared interest is that I am a qualified social worker, currently working as a researcher with children and families and I am a citizen with a genuine concern for the well being of children and young people.  I am not wearing, and never have worn, a cloak of secrecy, I have merely respected the confidentiality of the people I have worked with.  It is not with Mr. Waters’ opinion that I am concerned but with his deeply flawed analysis.  Mr. Waters’ analysis contains some accurate points, designed to draw in the reader predisposed to reasonable argument and to provide a credible, even authoritative, foundation.  As is regularly the case with Mr. Water’s these accurate points are then carefully knitted with numerous erroneous points often coupled with vital omissions to form a completely inaccurate but seemingly credible and authoritative analysis.

UK General Election: Liberal Democrat Manifesto and Human Rights

The Liberal Democrats have published their General Election Manifesto 2010. Cian has noted the main human rights commitments in the Conservative Party’s Manifesto here, and I have previously highlighted the main human rights commitments given in the Labour Party’s 2010 Manifesto. This is a brief overview of the main human rights commitments given in this Manifesto, however is important since it may be that the Lib Dems may be the King-makers in the new British Parliament  (see here, here and here).

The Liberal Democrats have made the following commitments:

UK General Election: Conservative Party Manifesto and Human Rights

Yesterday Liam highlighted the key human rights issues raised by the Labour Party Manifesto. Today we take a quick look at that offered by the Conservative Party. First, at a superficial level, it is worth noting that the phrase “human rights” appears in two sections of the manifesto. It appears once in a section on domestic political reform, under the title ‘Change Politics | Restore Our Civil Liberties’, but only as part of the title of the Human Rights Act (which the Conservative Party pledge to replace with a British Bill of Rights – more on that in a moment). It appears four times in the foreign policy section, titled ‘Promote Our National Interest | A Liberal Conservative Foreign Policy’. So does this mean four times as much human rights in foreign than in domestic policy? Not quite.

DNA retention and the Crime and Security Act 2010

The Crime and Security Act 2010, amending the scheme of DNA retention in England and Wales, was given royal assent earlier this month. Following from the decision in S and Marper v UK, as previously blogged about here and here, the UK was forced to revise its scheme of DNA retention in England and Wales.

The S and Marper decision prompted a lengthy consultation process by the Home Office, characterised by a reluctance to amend the law relating to the scope of the database. The consultation paper, Keeping the right people on the database: Science and public protection , ostensibly aimed “to provide a proportionate balance between protecting communities and protecting the rights of the individual”, although the lack of a robust rights-focus is noticeable throughout, while the rhetoric of risk avoidance and public protection is to the fore. The Home Office recommended the implementation of the S and Marper v UK decision through the destruction of DNA samples after six months, whether the individual goes on to be convicted or not; by permanent retention of DNA profiles after conviction; and retention for twelve years after arrest for a serious violent or sexual offence or terrorism-related offence and six years for other offences. These periods were chosen based on the likelihood of offending by people who have been arrested and not convicted, drawing on research included in Annex C to the paper which purports to show that 52% of re-offending happens within six years and two-thirds of re-offending happens within 12 years.

Manifesto Watch: UK Election & Human Rights

We are expecting the launch of the Labour, Conservative and Liberal Democrats’ manifestos for the General Election on Monday, Tuesday and Wednesday of next week respectively. Human Rights in Ireland will offer some early analysis of each one on the days of their launch to assess just what this election may mean for human rights in Britain and in Ireland.

UPDATE (08.49am): Adam Wagner over at the recently launched UK Human Rights Blog has written this morning that this bill of rights (for the UK, not Northern Ireland) is to be a key election issue. He also draws attention to a piece in the Guardian today critiquing the Conservative Party’s plans for human rights. Unless there’s a major policy announcement between now and then, I will hold my tongue on this until the manifesto announcement at the start of next week.

Cohabitation, Default Protection and the Civil Partnership Bill 2009

I have written before on the Civil Partnership Bill 2009 focusing mostly on the introduction through the Bill of civil partnership as a legally recognised relationship form for same-sex couples. We have, however, spent some time on the cohabitation proposals both ourselves and in an excellent guest contribution from Andrew Hayward of Durham University. The last few days, however, have seen a surge in analysis of the cohabitation provisions of the Bill with various voices, including Prof John Mee of UCC, expressing concern about the default protections within the Bill as it stands. Indeed, last night’s Prime Time on RTE featured a long report on the implications of the Bill for unmarried and un-civilly-partnered cohabitants. So what is the cause of this concern?

First of all there is the fact that certain protections, entitlements and obligations kick in automatically following a three-year cohabitation period or, if there is a child of the couple, a two-year cohabitation period. If a couple should manage to live together without getting married or civilly-partnered for two or three years, depending on the context, they will be termed ‘qualifying cohabitants’ and these default provisions will apply. The definition of a cohabiting couple (i.e. a couple in relation to whom we can start to count time in order to see whether they are ‘qualifying’) is contained within s.170 of the Bill.