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Colin Murray

Gay Marriage in Northern Ireland

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1 December, 2015
Authors, Colin Murray, Human Rights Law, Law & Equality, Legal Topics, Submissions
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“Northern Ireland Assembly Votes to Legalise Same Sex Marriage” proclaimed the headline in The Guardian. Few headlines have promised so much more than the subsequent story delivers. For in spite of the one-vote majority in favour of a change in the law in Northern Ireland in the Assembly on Monday, the DUP’s invocation of a “petition of concern” (POC) on the issue meant that it was able to veto the introduction of same-sex marriage in Northern Ireland. As Gerry Lynch put it, ‘it still felt like a punch in the plexus to finally secure a democratic majority through years of hard work only for it to be vetoed undemocratically’. With rich irony the Northern Ireland Act provisions designed to protect minority groups against predatory applications of majority power have been turned into a means of stymieing reform aimed at delivering marriage equality.

It wasn’t supposed to be like this. With the spectre of the Northern Ireland Parliament’s permanent Unionist majority dominating the drafting of the arrangements for the Northern Ireland Assembly at the time of the Good Friday Agreement, POCs were intended to maintain consociationalism within Stormont by requiring a super-majority and cross-community support where Northern Ireland’s Unionist or Nationalist parties considered that a measure threatened the interests of their community. The ability of POCs to block any legislative change has instead seen them increasingly applied as a strong-arm tactic to prevent changes to the law with the aim of preserving the status quo or extracting concessions in return for a POC being lifted. DUP measures, indeed, appear to be block signed by party MLAs with the issue to which they are to be applied being added to the form at a later stage. Public confidence in the Stormont Assembly’s ability to address the needs of society in Northern Ireland has plummeted.

Whilst the DUP’s stance on gay marriage might be out of step with opinion polling across Northern Ireland, it remains popular with its own core supporters and so the political incentive to wield a POC (ahead of next year’s Assembly elections) remains strong. But if the democratic institutions in Northern Ireland remain so dysfunctional, will the courts intervene to permit gay marriage? Legal challenges to the limitations are already underway in the Northern Ireland High Court. The UUP leader Mike Nesbitt, whilst describing opposition to gay marriage as being on the “wrong side of history” (whilst maintaining his own vote against change), has told his party conference that he expects the new law to be forced upon law makers through the courts.

Forcing law reform through judicial decision could unblock this particular impasse. The need to react to an adverse court decision might help the Unionist parties to soothe the evangelical elements amongst their support base, being “saleable” as a long-resisted reform that was forced upon the parties. All the better if the judgment is not issued until after the Assembly elections. And for people who want to get married, a win is a win, and they are not likely to sniff at the courts forcing the pace of change.

So should the courts intervene? Under section 6 of the Northern Ireland Act the legislation of the Northern Ireland Assembly is not valid law if it is outside the legislative competence of the Assembly (a concept which includes making a law which breaches ECHR rights). But as the Northern Ireland Assembly has not made a law banning Gay Marriage, just failed to enact one allowing it, the general provisions of the Human Rights Act (and its incorporation of the ECHR into UK Law) will apply.

Whilst the ECHR includes a right to marry (Article 12) the Strasbourg Court has to date refused to rule that it is discriminatory for states not to apply this right to homosexual couples. In July, in its latest judgment on the issue,Oliari v Italy, the Court maintained that as only 11 of the 47 states signatory to the Convention had to date accepted same-sex marriage, there was no European consensus in favour of reading such a right into the terms of the ECHR. Many Unionist politicians picked up on this point in Monday’s debate:

The European Court of Human Rights has ruled that same-sex marriage is not a human right, so this is not a rights issue. (Gordon Lyons, DUP)

There is no human right recognised by the European Convention on Human Rights or the European Court of Human Rights to same-sex marriage. It therefore cannot be and is not a rights issue, nor is it an issue of equality. Rather, there is a worked-up, phoney demand for rights where none does or should exist. There is no equality issue here. (Jim Allister, TUV)

These same politicians will eagerly and angrily decry any effort by the Northern Ireland courts to change the law on human rights grounds. But Article 12 is not the only applicable ECHR right. The Court has established that the relationship of a cohabitating same-sex couple living in a stable partnership falls within Article 8 ECHR’s protection of “family life” (Schalk and Kopf v Austria), this might provide a basis for arguing that, as same-sex marriages concluded in other parts of the UK are treated as Civil Partnerships within the Northern Ireland jurisdiction, the awkward legal transformation of a marriage into a civil partnership as soon as someone steps off a ferry or plane amounts to discrimination.

Moreover, the definition of marriage in Northern Ireland law – “the voluntary union for life of one man and one woman to the exclusion of all others” – rests on a nineteenth century judicial decision, Hyde v Hyde (backed up by secondary legislation – the Matrimonial Causes NI Order 1978). By altering this definition the courts cannot be accused of tossing aside legislation enacted by elected lawmakers, a fact which might embolden any judge concerned about the political backlash resultant from such a decision. They also have a much freer hand in terms of their powers under the Human Rights Act than they would have had if the definition of marriage was contained in primary legislation, if they can be persuaded to move ahead of Strasbourg on the issue of Article 12.

This room for manoeuvre makes the gay marriage cases crucial tests for the role of the courts in Northern Ireland’s system of government. On a range of issues from gay marriage, to the ban on gay blood donations to the strict limitations on abortion, judges in Northern Ireland are increasingly being confronted with cases which highlight the blockages in the Assembly’s law-making process. Some might decide that the time has come to chivvy the Assembly along.

Colin Murray.

Prisoner voting rights are another intractable struggle over Europe’s architecture for protecting human rights

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21 October, 2015
Colin Murray, EU, Human Rights Law
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handcuffsLast week, an appeal by a French prisoner to the EU’s top court against his voting ban revived the debate about prisoner voting rights in the UK. Colin Murray writes that although the appeal was unsuccessful, the ruling did not foreclose the possibility of future successful challenges to bans on prisoner voting. He suggests that it is highly likely that some UK prisoners serving short sentences will claim that their disenfranchisement is disproportionate to their crime in the run up to the 2019 European Parliament elections, indicating the issue will continue to be a thorn in the Conservative government’s side.

It has been eleven years since the Fourth Section of the European Court of Human Rights issued the Hirst v UK judgement. In that time, the issue of prisoner voting rights has become the touchstone for the fraught relationship between the UK and the system of rights protection under the European Convention on Human Rights (ECHR). Whilst other crises (such as Abu Qatada’s deportation to Jordan and the reviewability of whole-life sentences) have been resolved or defused, the Strasbourg Court’s demand that the UK modify its blanket ban on convicted prisoners voting has remained an intractable source of conflict, inflaming the Conservative’s manifesto pledge to replace the Human Rights Act with a British Bill of Rights.

For all of the political fulmination upon prisoner voting in the run up to the 2015 General Election, the UK’s showdown with Strasbourg has of late settled into an uncomfortable stalemate. The UK is in continuing breach of its Article 3, Protocol 1 obligations and as such is subject to regular censure before Committee of Ministers’ meetings for its failure to execute the prisoner voting judgments. At the same time, however, the Strasbourg Court has made it clear, in Scoppola v Italy, that minimal reform of the law to extend the vote to short-sentence prisoners would satisfy the UK’s obligations, and in Firth v UK has denied compensation to UK prisoners for the breach of their rights.

The Court’s first olive branch has been snubbed (with successive Governments failing to respond to a Parliamentary Committee’s recommendation, almost two years ago, that short-sentence prisoners should be enfranchised). But the UK Government’s refusal to meet the Court half way is unsurprising, given the Court’s refusal to press the issue. Strasbourg’s denial of compensation ensures that David Cameron does not have to justify make embarrassing payments to prisoners, effectively downgrading the clash from crisis to a running sore point.

The détente between Strasbourg and the UK makes last week’s judgement of the EU’s top court, the Court of Justice of the European Union (CJEU), even more intriguing. Serendipitously timed for release to coincide with David Cameron’s speech to the Conservative Party Conference (and the ten-year anniversary of the Strasbourg Court’s judgement in Hirst), the CJEU’s judgement in Delvigne v Commune de Lesparre-Médoc caused such consternation that Downing Street was obliged to deny that the UK would change its ban on prisoners voting even before the decision was known. The binding effect of CJEU judgments in domestic law means that its intervention on the issue would be much harder for the UK Government to side-step (at least with regard to European Parliament and local elections) than Strasbourg’s rulings.

In the end, Cameron’s speech was not upstaged, with the Court accepting that EU law was not breached in the ongoing denial of the vote to a convicted murderer in France over a decade on from the end of his incarceration. But if the judgment isn’t exactly headline-grabbing, is Joshua Rozenberg nonetheless right to argue that it means that the UK Government should act now on prisoner voting?

In many respects, the Delvigne reference was easy for the CJEU to resolve. The reference by the French Court was poorly constructed, with the Court being supplied with much less background information to the question of EU law its opinion was being sought on than it would usually expect (opening the possibility of ruling the reference inadmissible). The claimant had not attempted to follow the process which existed in French law to lift his disenfranchisement. Moreover, as a convicted murderer, France could make arguments about the seriousness of his offence warranting the additional punishment of disenfranchisement. The Court accepted that in some cases disenfranchisement was compatible with the EU’s Charter of Fundamental rights. Two years earlier, in Chester and McGeoch, the UK Supreme Court had reached the same conclusion on the limitations of the right to vote under EU Law:

I reject the submission that the Supreme Court could or should simply disapply the whole of the legislative prohibition on prisoner voting, in relation to European Parliamentary and municipal elections, thereby making all convicted prisoners eligible to vote pending fresh legislation found to conform with European Union law … under [EU law] a ban on eligibility will be justified in respect of a very significant number of convicted prisoners.  (Lord Mance, para.73)

And yet, in spite of these unpromising aspects of this case, the CJEU did not foreclose the possibility of future successful challenges to prisoner disenfranchisement using the Charter. The Court rejected the argument of the UK Government, intervening, that EU law was not engaged by criminal law sanctions or was not a live issue because the case involved a French national challenging French Law, and therefore involved no “cross-border” element. The Court affirmed that Article 39(2) of the Charter, by which “Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot”, did not need any cross-border element to generate a fundamental right enjoyed by EU citizens.

This means that in certain cases, claims for votes by prisoners will engage a Charter right. In the run up to the European Parliament elections in 2019 it will be highly likely that some UK prisoners serving short sentences will claim that their disenfranchisement is disproportionate, given that the ban on voting applies automatically irrespective of the level of criminality which triggered imprisonment (which can be much lower than the serious criminality at issue in the Delvigne case) and there is no avenue to challenge the ban (as there was in the Delvigne case). These factors were determinate in the CJEU finding that French law involved a proportionate restriction of the right to vote. Such claims will be hard for the UK courts to dismiss out of hand, and could at the very least trigger a reference to the CJEU for consideration (as they previously refused to do in Chester and McGeoch, because of the serious criminality of the claimants in that case).

“Victories” like this one are therefore hard for the UK Government to crow over, even if they do help to kick the issue into the long grass for a few more years. It may ultimately be better for the UK Government to respond when it is not being forced to by pressure from a European Court (not that successive Governments have not revelled in the image of “standing up to Europe”). But perhaps the most interesting aspect of the case is the degree to which the CJEU staunchly refused to engage with any of the ECHR jurisprudence on prisoner voting. The Advocate General’s Opinion, released this summer, reached broadly the same conclusion as the CJEU (that EU law was engaged, but that the ban was proportionate), but did so based on extensive reliance upon Strasbourg jurisprudence.

The CJEU, however, continues to fear that it might lose out to Strasbourg as the ultimate arbiter where EU law engages human rights questions. Last year, it refused to allow the EU to accede to the ECHR and in Delvigne, as with other recent cases, it has shunned any mention of Strasbourg in its decisions out of concern over letting Strasbourg’s influence grow by the back door. Prisoner voting rights are becoming a central feature of yet another intractable struggle over Europe’s institutional architecture for protecting human rights.

Colin Murray is Senior Lecturer in Law at the University of Newcastle

Devolution and the Future of the UK’s Human Rights Act 1998

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18 September, 2015
Colin Murray
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HRAThe Conservative Party’s concept of a “British Bill of Rights” has long rankled in Northern Ireland. Seemingly in the interests of alliteration such fundamental proposals were titled in a way that carried with it thinly veiled disregard for sensibilities in what is supposedly a constituent part of the UK. Not a UK Bill of Rights, but one for Britain. British rights, not Irish rights. Beyond putting noses out of joint, it also spoke to a lack of consideration of the legal framework put in place by the Belfast/Good Friday Agreement. As the Coalition Government’s Bill of Rights Commission had warned (p.15):

[R]espondents, in particular in Northern Ireland … were also concerned that any attempt to introduce a UK Bill of Rights at this time could have adverse constitutional and political consequences for the UK, particularly if it were undertaken to the exclusion of a Bill of Rights for Northern Ireland

Nonetheless, with last week’s General Election victory the Conservative Party stands on the brink of being able to fulfil its manifesto promise:

The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.

The latest reports suggest a draft Bill is near ready for release. The appointment of Michael Gove as Minister for Justice suggests that David Cameron is positioning a minister who certainly holds himself out as a public intellectual to lead the debate over this reform. But any thought that Gove’s appointment marks a softening of the Tory position on the Human Rights Act seems wide of the mark. The most prominent appointment in Gove’s ministerial team is Dominic Raab, a vocal opponent of the HRA and a minister intended to assure the right-wing of the Conservative Party that there will be no back sliding on this issue. And indeed, how could there be? If Cameron is to hold the Tory party together in support of his “renegotiation” of the UK’s EU membership, even if this results in insubstantial concessions over the UK’s position, and subsequent referendum, this faction will have to have blood, and quick.

So, in this context, are the implications of repeal for devolution (particularly in Northern Ireland) a genuine stumbling block or wishful thinking? Will a British Bill of Rights have to alter the Good Friday Agreement? Much will depend on the extent of the Tories’ intentions. Gove’s team could unveil plans which just involved the replacement of the Human Rights Act in England. This would negate any need to negotiate with hostile devolved administrations in Scotland or Wales or tamper with the wiring of the Good Friday Agreement. This would certainly save political capital, allowing the Conservatives to portray themselves as responsive to the will of devolved legislatures and to concentrate on getting the legislation into place as swiftly as possible (as it would constitute the fulfilment of a manifesto pledge the Salisbury Convention would also prevent opponents of the proposals from fighting a delaying action through the House of Lords). Doing so might well not satisfy the Tory Party’s right wing, as the Human Rights Act would continue to operate in three of the UK’s constituent countries, but in terms of addressing the demands of Conservative voters in England (the vast majority of Conservative voters) David Cameron could argue that he had fulfilled his pledge to scrap the Bill.

But a new measure which applies only in England doesn’t make for much of a British Bill of Rights. So assuming a proposal is introduced to Westminster with the intention that it should apply throughout the UK, what might happen next? The first difficulty that the UK Government would encounter is that human rights are a devolved competence. The Welsh Assembly Government, for example, has gone some way towards incorporating the UN Convention on the Rights of the Child into Welsh law, imposing a duty upon Welsh ministers to have due regard to the Convention in their decision-making. This means that the Sewel Convention is triggered, by which the devolved legislatures must consent to Westminster legislation that impacts upon their competences (explained here). Furthermore (as Aileen McHarg explains here) the devolved legislatures in Scotland and Wales would be able to re-enact the Human Rights Act’s terms, and would likely do so to thumb their noses at Westminster. In any event, the ECHR would still be able to apply directly to cover legislation and decisions by Scottish and Welsh ministers because of the terms of the devolution legislation.

Which brings us to Northern Ireland, which, as ever, is even more complicated. Under the Good Friday Agreement the UK Government agreed to the ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights’. The Human Rights Act itself is immune from alteration by the Assembly (s.7(1)(b) Northern Ireland Act 1998). As Aoife O’Donoghue and Ben Warwick argue in a timely article in the Northern Ireland Legal Quarterly (see also here), if the Act was repealed then just as with the other devolved legislatures, ‘Northern Ireland could introduce an order that implements the ECHR for Northern Ireland alone’. The problem is that with the main Assembly parties at loggerheads on rights and equality issues (particularly around the Ashers Bakery case) and with the Unionist parties always ambivalent towards human rights, no such legislation would be forthcoming. Repealing the HRA as it applies to Northern Ireland would therefore undermine a key element of the Agreement. Oddly enough the Human Rights Act was merely intended to fulfil the role of placeholder legislation whilst a Northern Ireland Bill of Rights was drafted, but the inability of the Northern Ireland political parties to reach an agreement over such legislation now means that the Human Rights Act will likely soldier on in this corner of the UK at least.

The smart money would therefore appear to be on some form of compromise by which the Human Rights Act is repealed insofar as England is concerned, but remains in place in the remainder of the UK. Martin Howe QC, a key behind-the-scenes figure involved in drafting the Conservatives’ proposals is quoted in The Guardian as saying that ‘you could have significantly different standards of human rights across the UK’. The problems with attempting to impose a British Bill of Rights across the UK, although not insurmountable, would turn a relatively straightforward “win” for the Tories into a protracted fight. Any effort by the Conservatives to go further, and withdraw from the European Convention altogether, would likely descend into a pitched constitutional battle between the UK’s legislatures.

Written by Colin Murray

Colin Murray is a senior lecturer at Newcastle Law School where he specialises in national security law, legal history and public law. Alongside Roger Masterman (Durham University) he is the author of “Exploring Constitutional and Administrative Law”, a textbook on UK public law. You can contact him at colin.murray [at] ncl.co.uk or (+44) 191 2225805

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) [email protected]

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.

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) [email protected]

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.