- The Northern Ireland Human Rights Commission (NIHRC) pursuant to Section 69 (1) of the Northern Ireland Act 1998 reviews the adequacy and effectiveness of law and practice relating to the protection of Human Rights.[1] In accordance with this function the following statutory advice is submitted to the Department of Justice on the “Future Operation of the Office of the Police Ombudsman for Northern Ireland” consultation paper
- NIHRC welcomes this opportunity to respond to the consultation on the “Future Operation of the Office of the Police Ombudsman for Northern Ireland” (OPONI). This submission will offer advice on those areas that are the subject of international human rights standards and related jurisprudence and therefore not comment on all questions put forward in the consultation document.
- OPONI has an important role in delivering justice and is part of a network of organisations in Northern Ireland that deliver some of the UK’s key human rights commitments. The interaction of police officers with members of the public or suspects in criminal cases has the potential to both promote and risk a number of human rights protections. These include the right to life, the right to be free from torture, inhuman or degrading treatment or punishment, the right to protection from unlawful deprivation of liberty, the right to a fair trial, the right to freedom of expression, the right to peaceful assembly and protest and the right to be free from discrimination.[2] Human rights law has established that a robust, independent and effective system of oversight and complaint handling is therefore essential to the promotion and protection of human rights.
- NIHRC therefore welcomes Section 3 of the consultation paper which sets out part of the international human rights framework with which the OPONI should comply. Thomas Hammerberg’s Opinion Concerning independent and effective determination of complaints against the police provides a key framework for establishing and maintaining an effective complaints mechanism. The Department of Justice is correct in stating that the Opinion sets out broad principles and is not prescriptive about many of the issues that form the basis of this consultation. However, the Commission also refers the DoJ to the Office of the United Nations High Commissioner for Human Rights Standards and Practice for the Police. These also outline relevant standards for entities tasked with handling complaints against the police. To summarise the relevant commentary - an effective human rights compliant complaints mechanism must be: independent, thorough, comprehensive, prompt, involve the victim and contain a sufficient level of public scrutiny. It does not only provide appropriate redress for individual cases but is also fundamental to preventing misconduct across the institution.
Addressing gaps in OPONI’s remit
- In addition the Council of Europe Committee for the Prevention of Torture (ECPT) has formulated Standardsfor effective complaints mechanisms against public officials, including police officers. The Standards of the CPT reveal an important gap in the current remit of OPONI which only permits it to look at complaints brought by members of the public. Thus, at present, police officers cannot bring complaints about other officers to OPONI. In contrast the ECPT has stated “an atmosphere must be created in which the right thing to do is to report ill-treatment by colleagues; there must be a clear understanding that culpability for ill-treatment extends beyond the actual perpetrators to anyone who knows, or should know, that ill-treatment is occurring and fails to act to prevent or report it”.[3] While the Commission acknowledges that the internal complaints mechanism exists for PSNI officers it nonetheless advises that the remit of OPONI be extended to investigate complaints brought by police officers against other police officers. Provided that any investigation(s) prompted by an internal and external complaint are sequenced appropriately this would only help to ensure public confidence in the PSNI’s commitment to upholding its human rights obligations to its own officers as well as the public.
- There is currently no oversight of immigration officers operating in Northern Ireland. Immigration officers have significant powers to authorise detention, search personal belongings and enter places of work and residence. Individuals targeted by the UK Border Agency therefore are at risk of human rights breaches with no recourse to a complaints mechanism. Yet complaints against immigration officers in England and Wales are investigated and adjudicated by the Independent Police Complaints Commission. NIHRC upon completing a major investigation into the detention of migrants and asylum seekers by the UK Border Agency first recommended in 2009 that OPONI should be given responsibility for complaints against UKBA.[4] That recommendation was accepted by the UK Government in 2009 and different pieces of legislation were mooted as possible vehicles for the change[5]. However, despite that recognition the gap in oversight remains. NIHRC recognises that bringing UKBA within the remit of OPONI will involve primary Westminster legislation as well as NI Assembly legislation. NIHRC advises that the DoJ play its part in bringing in the necessary legislative changes and that it urges Whitehall to do the same.
- In its Concluding Observations of 2011 the UN Committee on the Elimination of Racial Discrimination recommended that Northern Ireland “should ensure that the Office of the Police Ombudsman in Northern Ireland is able to undertake effective, efficient and transparent investigations in cases of racial discrimination”.[6] Police interaction with minority ethnic communities and juveniles and appropriate complaint handling with these groups are given special attention in the UN Standards referred to above. The Commission therefore advises that the Department of Justice ensures that OPONI has the appropriate policies, resources and training in place to publicise its remit with such groups and to investigateeffectively complaintsbrought by them.
Historical cases
- In conducting investigations into deaths OPONI has responsibility for upholding key human rights obligations. Where a death is suspected to be caused by an agency of the state the investigation must be in accordance with Article 2 of the European Convention on Human Rights (ECHR) and Article 6 of the International Covenant on Civil and Political Rights (ICCPR). This had been a major aspect of OPONI’s work with respect to historical cases until suspension of that function. OPONI therefore has had to date a key role to play in conducting effective investigations into state related deaths and the transitional justice process in Northern Ireland. NIHRC is committed to undertaking an extensive research exercise into transitional justice arrangements in Northern Ireland[7] and will engage further with the Department of Justice on the outcomes of that research.
- At this juncture however, NIHRC only comments that the current fragmented approach is an anomaly for post-conflict societies across the world and has overall, led to unsatisfactory outcomes for victims and truth recovery. The Commission advises the Department of Justice to draw on international best practice for appropriate transitional justice measures for Northern Ireland and to play its part in bringing forward a human rights compliant reflection across all stakeholders on transitional justice. The outcomes of such a consultation along with the research to be published by NIHRC will go some way in assisting the Department of Justice and Government as a whole in applying a human rights based approach to transitional justice.
June 2012
Northern Ireland Human Rights Commission
Tel: 028 90243987
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[1]Northern Ireland Act 1998, s.69 (1)
[2] These rights are enshrined in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention of Human Rights as follows: Article 6 ICCPR, Article 2 ECHR; Article 7 ICCPR, Article 3 ECHR; Article 9 ICCPR, Article 5 ECHR; Article 14 ICCPR, Article 6 ECHR; Article 19 ICCPR, Article 10 ECHR; Article 21 ICCPR, Article 11 ECHR; Article 26 ICCPR and Article 14 ECHR
[3] European Committee for the Prevention of Torture, Standards, 2000
[4]Our Hidden Borders, Northern Ireland Human Rights Commission, 2009
[5] For example, consideration was given to bringing this forward during the passage of the Borders, Citizenship and Immigration Act 2009 and then in the Simplification Bill
[6]UN Committee on the Elimination of All Forms of Racial Discrimination, Concluding Observations, September 2011, CERD/C/GBR/CO/18
[7] Northern Ireland Human Rights Commission, Business Plan 2012-2013,