The House of Lords and the Northern Ireland Conflict – A Sequel

Date01 May 2006
AuthorBrice Dickson
Published date01 May 2006
Con£ict ^ A Sequel
Brice Dickson
This article begins by commentingo n an analysis undertaken bythe late Stephen Livingstone of
13case s relatingto the troubles in Northern Ireland decided by the House of Lords between 1969
and 1993. It then attemptsto repeat the analysis in respect of 12 such cases decided between 1994
and 2005. Areas of law arising for consideration during both periods include the rules on the use
of lethal force, aspects of substantive criminal law and criminal procedure and the rights of per-
sons arrested or imprisoned.The more recent cases also raise fundamental questions concerning
the status and meaning of the Good FridayAgreementof 1998.The article concludes that there has
been a sea-change in the way the LawLords have handled the Northern Irish cases. Fromtreating
them in a way whichmight have suggested a built-in bias in favourof police, army and govern-
ment perspectives, theyhave moved to analysing the competingarguments in the light of more
modern approachesto statutory interpretation, the rule of law and human rights.
In 1994 the Modern Law Review published an article by Stephen Livingstone in
which he examined 13 cases decided by the House of Lords between 1969 and
1993 that touched directly or indirectly on the legal measures taken to deal with
terrorism in Northern Ireland.
The conclusionwas that the record was ‘an undis-
tinguished one’: the decisions showed ‘a consistent failure to recognise, let alone
fully consider, the human rights implications, and [were] frequently unsatisfac-
tory even as regards their technical aspects of reasoning and explanation’. Living-
stone thought that the performance s of the Northern Ireland Court of Appeal and
of the European Court of Human Rights were more impressive in this sphere
and that the House of Lords, by consistently upholding government action in
NorthernIreland, had ruled itself out of playing a constructiverole in the North-
ern Irelandcon£ict. Even when the House invoked the European Convention on
Human Rights, he claimed,it had little di⁄culty in exonerating UKgovernment
action, an attitude which did notbode well for the time whensuch rights became
enshrined in UK domestic law through a Bill of Rights. On their record to date
he cautioned against giving judges too great a role in the enforcement of anysuch
Bill of Rights.
The 1994 article was not pol emical. As always, the author was carefu l tolook at
his topic contextually and to present a balanced account.While condemning the
Professor of Law at Queen’sUniversity Belfast.This article is written in tribute to Stephen Living-
stone, Professor of Lawat Queen’s University Belfast, whowent missing in March 2004 and is pre-
sumed dead. I amgrateful to my colleague Dr Gordon Anthonyfor comments made on a draft of the
article. Flaws remaining are mine alone.
1 ‘The House of Lords and the Northern Ireland Con£ict’ (1994) 57 MLR 333.
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(3)MLR 383^417
remarksmade by individual Law Lords inparticular cases,
he did not suggest that
as a group they had systematicallyconspired to rubber-stamp government action
in NorthernIreland. Nordid he argue that thedecisions were all‘bad’from a legal
point of view. But he did highlight two common features of the judgments in
question: their brevity and their refusal to concede that they were particularly
about’ Northern Ireland at all. And he noted that when the House of Lords was
considering the reasonableness of conduct in these terrorist cases it appeared reg-
ularly‘to constructthe context from theperspective of the security forces and the
dangers they face’.
The present author largely agrees with that analysis of those cases ^ largely, but
not entirely. The ¢rst part of this sequel will suggest some considerations which
Livingstone did not, or could not,
mention in connection with the cases he
examined. The second part will look at 12 further cases from Northern Ireland
which have since been decided bythe House of Lords.The judgments in thelater
cases, it will be submitted, suggestthat the Law Lords are doing a muchbetter job
than they did previously. Their approach to judicial activism has become more
daring (although caution still prevails),
they are displaying a more coherent
approach to statutory interpretation (surpassing the Northern Ireland Court of
Appeal in this respect), their attitude to the Human Rights Act1998 has not sub-
stantiated fears about how the top judges would apply such a document and they
have demonstrated that they are well aware that protection of human rights ha s to
be a keycomponent of the resolution of the con£ict in Northern Ireland.
Livingstone divided his 13 cases into ¢ve groups: those dealing with the use of
lethal force by members of the security forces: AG’s Ref eren ce (1976), Far rell (1979),
McKerr (1990) and Breslin (1992); those concerned with criminal law and proce-
dures: Lync h (1975), Maxwell (1978), Brophy (1982) and Murray (John) (1992);
2 Eg the comments of Lord Diplock in Attorney Generalfor NorthernIreland’s Reference (No.1 of 1975)
(also known as the McElhone case) [1977] AC105.
3 Because they arose after his article was published.
4 One does well to bear i n mind the note of caution articulated byTridimas with respect to the
concept of judicial activism:‘analysesbased o nthe judicial activismc judicial restraint dichotomy,
as applied to the [European Courtof Justice], tend to su¡er from methodologicaland substantive
drawbackswhich limit their value as methods on the basis of which the performance ofthe Court
can be ass essed’:T.Tridimas,‘The Court of Justice and Judicial Activism’ (1996)21 Eur LR 199. For
a recent strong critique of excessive judicial activism in relation to a prominent common law
jurisdiction, see S. P. Sathe, Judicial Activism in India:TransgressingBordersand Enforcing Limits(New
Delhi: Oxford University Press, 2002). A leading commentator on the Canadian jurisdiction is
more generous: K.Roach,The Supreme Court onTrial: Judicial Activism or Democratic Dialogue (Tor-
onto: Irwin Law, 20 01). For recentasse ssmentsof judicial activism in the United States see T. M.
Keck,The Most Activist Supreme Court in History (Chicago and London: University of Chicago
Press, 2004) and M.R. Levin, Men in Black:How the Supreme Court is Destroying America(Washing-
ton DC: RegneryPublishi ng,2005).
5 It is not clear why Livingstone did noti ncludei nth is category Linton vMinistryof Defence [1983]
NI 51, where a man injured during an exchange of shots between soldiers a nd terrorists lost his
appeal in the Lords against the inadmissibility of tardily adduced evidence.
The House of Lords and the Northern Ireland Con£ict
384 rThe Modern LawReview Limited 2006
looking at powers of arrest and search: McKee (1984), Murray (Margaret) (1988);
those focusing on the right to political expression: McEldowney (1969) and Brind
and one case regarding the rights of prisoners: Hone (1990).
In noting thatthe law as stated by the House of Lords in the two cases on arrest
and search was subsequently found to be in breach of the European Convention
on Human Rights ^ in Fox e t al vUK (1990)
and Murray (Margaret) vUK (1993)
Livingstone was not to know that within a few months the European Commis-
sion’s views in the latter case were to be overruled by the European Court.
could have mentioned, however, that the European Commission had already
declaredi nadmissible manyother applications emanating from Northern Ireland.
Amongst these were the cases lodged by relatives of persons killed on Bloody
the motherof a 13 -year-old boy killed bya plastic bullet
and the father
of a17-year-old boyshot dead by the armyat a vehicle checkpoint.
Moreover the
European Court later rejected challenges to the Houseof Lords’decisions in both
Brind (1991)
and Murray (John) (1992).
Of coursethe European Court’s own jurisprudence hasdeveloped signi¢cantly
in the last decade or so, just as that of the House of Lords has done. In no fewer
than seven cases from or about Northern Ireland the European Court has devel-
oped the‘procedural’ right in article 2 of the European Convention to have kill-
ings e¡ectively investigated;
in Magee vUK
and Averill vUK,
two criminal
cases whichproceeded directly from the Northern Ireland Courtof Appeal to the
European Court without ¢rst being heard by the House of Lords, the European
Court con¢rmed that denying access to a solicitor ^ without good cause ^ to an
arrested person who is being questioned by the police is a breach of article 6(1) of
the Convention taken in conjunction with article 6(3)(c); in Brennan vUK
6 A case which actually arose in England, b ut which Livingstone included in his analysis because
the measure in question directly relatedto the Northern Ireland con£ict.
7 13 EHRR 157.
8 19 EHRR 193.
9 The Commission held for Mrs Murrayby 11votes to 3 regarding the alleged breach of art 5(1) and
by 10 votes to 4 regarding the alleged breach of art 5(2). The European Court held against Mrs
Murrayby 14votes to 4 regarding art 5(1) and by 13votes to 5 regarding art 5(2).
10 McDaida ndothers vUK (1996) 22 EHRR CD 197; Ireland vUK (1972) 41Collec tions of Decisions 3.
11 StewartvUK (1984)7 EHRR 453.
12 Kelly vUK (1993) 16 EHRRCD 20.
13 Brind vUK (1994) 18 EHRR CD 76; see too McLaughlin vUK (1994) 18 EHRR CD 84. In
McGuinness vUK (App 39511/98; decision of 8 June 1999) the European Court rejected a claim
by a Sin n Fe
Łin MP that his right to freedom of expression under art 10 of the Convention was
violated by the statutory requirement that he swear an oath of allegiance if he wanted to have
access to the normal facilities availableto MPs at Westminster.
14 Murray (John) vUK (1996) 22 EHRR 29. The European Court held that denying access to a sol i-
citor during police questioning was not aviolation of art 6 unless inferences could be drawn from
the accused’s silence during such question ing.See now Criminal Evidence (NI) Order 1999, art 37.
15 McCann vUK (1995) 21 EHRR 97 (a case involving deaths in Gibraltar, but of IRA members);
JordanvUK (2003) 37 EHRR 52;Kelly a nd others vUK (App 30054/96; decision of 4 May 2001);
McKerr vUK (2002) 34 EHRR 553; Shan aghan vUK (App 37715/97; decision of 4 May 2001);
McShane vUK (2002) 35 EHRR 593; and Finucane vUK (2003) 37 EHRR 656. See generally
F. N| ¤Aola|¤n, ‘Truth Telling, Accountability and the Right to Life in Northern Ireland’ [2002]
EHRLR 571.
16 (2001)31 EHRR 35;[2000] Crim LR 681.
17 (2000) 31EHRR 839; [2000] Crim LR 682.
18 (2002) 34 EHRR 507; [2002]Cr im LR216.
Brice Dickson
385rThe Modern LawReview Limited 2006

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