The European Convention on Human Rights and the Conflict in Northern Ireland

by Dickson, Brice

• ISBN13: 9780199652341
• ISBN10: 0199652341
• Edition: Reprint
• Format: Paperback
• Copyright: 2012-05-04
• Publisher: Oxford University Press

Summary

This book provides the first comprehensive account of the role played by the European Convention on Human Rights during the conflict in Northern Ireland from 1968. Brice Dickson studies the effectiveness of the Convention in protecting human rights in a society wracked by terrorism and deep political conflict, detailing the numerous applications lodged at Strasbourg relating to the conflict and considering how they were dealt with by the enforcement bodies. The book illustrates thelimitations inherent in the Convention system but also demonstrates how the European Commission and Court of Human Rights gradually developed a more interventionist approach to the applications emanating from Northern Ireland. In turn this allowed the Convention to become a more secure guarantor ofbasic rights and freedoms during times of extreme civil unrest and political turmoil elsewhere in Europe. The topics examined include the right to life, the right not to be ill-treated, the right to liberty, the right to a fair trial, the right to a private life, the right to freedom of belief, the right to freedom of expression, the right to freedom of assembly, and the right not to be discriminated against. The book argues that, while eventually the European Court did use the applications from Northern Ireland to establish important human rights principles, their development was slow and arduousand some gaps in protection still remain. The book illustrates the limits of the European Convention as a tool for protecting human rights in times of crisis.

Author Biography

Brice Dickson is Professor of International and Comparative Law at Queen's University, Belfast

Table of Contents

Table of Cases	p. xiii
Tables of Legislation	p. xxv
List of Abbreviations	p. xxxix
Introduction	p. 1
The Background to the Conflict and the Rights Discourse	p. 5
Competing nationalisms	p. 5
The partition of Ireland	p. 8
Northern Ireland and the Special Powers Act	p. 9
Direct rule	p. 12
Human rights discourse in Northern Ireland	p. 14
Early calls for a Bill of Rights	p. 16
The Standing Advisory Commission on Human Rights	p. 17
Conclusion	p. 20
Early Fumblings with the Convention	p. 23
The Convention's origin and content	p. 23
The Convention's limitations	p. 27
The situation in Northern Ireland when the Convention became binding	p. 29
The Republic of Ireland's emergency legislation	p. 30
The IRA and internment in the Republic	p. 32
Lawless v Ireland	p. 34
Was there a public emergency in Ireland?	p. 36
Were the measures taken in Ireland strictly required?	p. 38
Access by individuals to the European Court	p. 40
Complaints of religious discrimination	p. 42
Bernadette Devlin v United Kingdom	p. 48
Miscellaneous complaints	p. 49
Conclusion	p. 51
Internment and Restrictions on Movement	p. 53
The practice of internment in Northern Ireland	p. 53
The Diplock Commission and the EPA 1973	p. 55
The Gardiner Committee and the EPA 1975	p. 57
The criminalization policy	p. 58
Ireland v United Kingdom	p. 61
The European CourtÆs decision	p. 63
Further derogations	p. 68
Internment in the twenty-first century	p. 70
Port powers	p. 74
McVeigh, O'Neill and Evans v United Kingdom	p. 76
The Shackleton and Jellicoe reviews	p. 79
Powers to stop and question	p. 80
Exclusion orders	p. 82
Attempts to challenge exclusion orders in the courts	p. 84
Criticisms of the power to exclude	p. 89
Conclusion	p. 92
Powers of Arrest	p. 93
The scope of Article 5 of the Convention	p. 93
The right to security	p. 95
Arrests in connection with criminal offences	p. 96
'Ordinary' and 'special' arrest powers	p. 97
Special army arrest powers	p. 98
The Baker Review and the EPA 1987	p. 100
Margaret Murray v United Kingdom	p. 102
Special police arrest powers	p. 105
Challenging arrests in domestic courts	p. 108
Fox, Campbell and Hartley v United Kingdom	p. 112
O'Hara v United Kingdom	p. 114
Conclusion	p. 117
Detention Pending Charge or Trial	p. 118
The right of detainees to be brought before a judge	p. 118
Brogan v United Kingdom	p. 121
Further challenges to the derogation notice	p. 124
The right of detainees to be charged or released	p. 129
The right of detainees to be released pending trial	p. 131
General rules on bail	p. 135
Conclusion	p. 137
The Right Not to be Ill-treated	p. 139
Article 3 of the Convention	p. 139
Donnelly v United Kingdom	p. 142
Ireland v United Kingdom	p. 146
Diplock, the EPA, and the Bennett Inquiry	p. 153
The holding centres	p. 159
Developments since 1989	p. 161
Punishment attacks	p. 165
Conclusion	p. 167
The Right to a Fair Trial	p. 169
Access to a solicitor	p. 170
The right of immediate access	p. 174
The right of access during police interviews	p. 182
Judicial review of prosecutorial decisions	p. 186
The presumption of innocence and the burden of proof	p. 189
Proof of membership of unlawful organizations	p. 191
The admissibility of evidence	p. 196
The right to remain silent	p. 198
The use of informers	p. 203
The right to jury trial	p. 205
The right to trial within a reasonable time	p. 210
The right to no punishment without law	p. 212
Extradition	p. 214
Conclusion	p. 223
The Right to Life	p. 225
The wording of Article 2 of the Convention	p. 226
The death penalty	p. 228
The right to be protected against risks to life	p. 231
Post-Osman cases relating to Northern Ireland	p. 237
The Key Persons Protection Scheme	p. 239
Claims by witnesses to anonymity	p. 244
The right not to be killed	p. 248
Rubber and plastic bullets	p. 260
The use of potentially lethal force today	p. 265
The right to a thorough investigation	p. 268
Inquests	p. 274
Conclusion	p. 275
The Right to a Private and Family Life	p. 276
Prison conditions	p. 276
Strip-searches	p. 284
Transfer of prisoners	p. 287
Other prison issues	p. 290
Searches of property	p. 293
Sexual issues	p. 297
Conclusion	p. 298
Freedom of Expression, Belief, and Assembly	p. 300
Bans on broadcasting and reporting	p. 300
Freedom of expression and elections	p. 306
Freedom of expression and parliamentary processes	p. 314
Treason, sedition, and incitement to disaffection	p. 319
Prisoners and journalists	p. 323
Belief and identity issues	p. 326
Recruitment to the police	p. 329
Parades	p. 330
Conclusion	p. 338
Freedom from Discrimination	p. 340
Religious and political discrimination	p. 342
The relevance of the European Convention	p. 345
Tinnelly&Son Ltd and McElduff v United Kingdom	p. 350
Other grounds of discrimination	p. 356
Housing and education issues	p. 359
Conclusion	p. 361
The Final Picture	p. 362
The contribution of the Convention in Northern Ireland	p. 362
A Bill of Rights for Northern Ireland?	p. 365
The Convention and conflicts in other European societies	p. 369
The future	p. 375
Appendix: Applications lodged in Strasbourg relating to the conflict in Northern Ireland	p. 377
Bibliography	p. 397
Index	p. 425
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