Copyright © The Author 2007. Published by Oxford University Press.
Monitoring the Performance of the Police Service in Northern Ireland in complying with the Human Rights Act 1998
* Keir Starmer QC, Doughty Street Chambers. E-mail: k.starmer{at}doughtystreet.co.uk
The Human Rights Act 1998, which marked a turning point in the protection of human rights in the UK, requires all public authorities—including the police—to act in a way which is compatible with the individual rights and freedoms contained in the European Convention on Human Rights. It provides individuals with remedies if a public authority breaches their human rights. However, it does not set up a mechanism for monitoring compliance with human rights. In most cases, if monitoring occurs at all, it is on a voluntary ad hoc basis. As far as I am aware, no comprehensive scheme exists to measure human rights compliance anywhere in the UK.
The position for the PSNI, however, is different. The Police (Northern Ireland) Act 2000 specifically mandates the Policing Board in Northern Ireland to monitor the performance of the PSNI in complying with the Human Rights Act 1998. No similar duty has been placed on any other police oversight body anywhere else in the UK. Along with Jane Gordon, I was appointed in February 2003 to advise the Policing Board how to meet this statutory duty. Since then we have published four reports: two annual reports (2004–2005 and 2005–2006) and two special reports, the first into the policing of the parade through the Ardoyne area on 12th July 2004, the second into the policing of the parades through the Ardoyne area on 12th July 2005 and Whiterock in September 2005 that ended in serious violence and rioting.
In this article I examine the background to the monitoring duty imposed on the Policing Board in Northern Ireland and indicate how the PSNI have sought to ensure compliance with the Human Rights Act 1998.
The background starts with Independent Commission on Policing in Northern Ireland, which was set up as part of the Agreement reached in Belfast on 10 April 1998. The task of the Commission was to provide ‘a new beginning to policing’ in Northern Ireland. In its report published in 1999 (commonly referred to as the Patten Report), the Commission made 175 recommendations about policing in Northern Ireland. Among the recommendations were proposals regarding the composition, size and structure of the Police Service. The Commission also recommended the creation of new accountability structures and required policing in Northern Ireland to be underpinned by human rights.
As a result of the Patten recommendations, the RUC ceased to exist in November 2001 and the PSNI came into being. At the same time, new accountability structures were set up, including the establishment of the Northern Ireland Policing Board, the Police Ombudsman and nearly 30 District Policing Partnerships.
The Policing Board is the policing authority for Northern Ireland. Its primary function is to hold the Chief Constable and his staff to account. It also sets objectives and targets for police performance. It is an independent public body composed of members of the Northern Ireland Assembly and non-political independent members. It was established to secure for all the people of Northern Ireland an effective, efficient and impartial police service which has the confidence of the whole community.
The Police Ombudsman provides an independent and impartial police complaints system for Northern Ireland. District Policing Partnerships were set up by the Policing Board in co-operation with local councils in March 2003. They are made up of members of the local community and are either members of the public (independent members) or councillors (political members) who represent the district on their local council. District Policing Partnerships were established so that local people together with the PSNI could shape local policing by working together to reduce the levels of crime in order to provide a better quality of life for everyone. In addition, there is the Oversight Commission which reports on the progress made by the PSNI in implementing the Patten recommendations. It has recently paid tribute to those within the PSNI who have driven forward ‘unparalleled’ change in policing.
It was a central proposition of the Patten Report that the fundamental purpose of policing should be the protection and vindication of the human rights of all. Citing Article 28 of the Universal Declaration of Human Rights, i.e. that ‘everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized’, the Patten Report insisted that the role of the police is to help achieve that social and international order. The central premise being that: ‘There should be no conflict between human rights and policing. Policing means protecting human rights’.
The Patten Report made a number of key recommendations intended to put human rights at the centre of policing in Northern Ireland. These included the following:
- That the PSNI should devise a comprehensive programme of action to focus policing in Northern Ireland on a human rights-based approach
- That the PSNI should adopt a new oath to be taken individually by all new and existing police officers, expressing an explicit commitment to upholding human rights.
- That the PSNI should adopt a new Code of Ethics, to replace the existing, largely procedural code, integrating the European Convention on Human Rights into police practice.
- That all police officers and police civilians should be trained (and updated as required) in the fundamental principles and standards of human rights and the practical implications for policing.
- That awareness of human rights issues and respect for human rights in the performance of duty should be an important element in the appraisal of individuals in the police service.
- That a lawyer with specific expertise in the field of human rights should be appointed to the staff of the police legal services. This lawyer should be consulted about proposed police operations that raise human rights considerations.
- That the performance of the police service as a whole in respect of human rights, as in other respects, should be monitored closely by the Policing Board.
It was this last recommendation that was given statutory force in the Police (Northern Ireland) Act 2000.
In advising the Policing Board how to discharge its duty under the Police (Northern Ireland) Act 2000, the first task that we faced was that of devising a model for monitoring human rights. After extensive consultation with Board members, the PSNI and other interested parties, we devised a framework document that was published in December 2003. It committed the Policing Board to an examination of human rights compliance in twelve separate areas of the PSNI's work. It also set out the standards against which the performance of the PSNI would be monitored. These are the standards set out in the PSNI Code of Ethics, which includes standards drawn from the European Convention on Human Rights and other relevant human right instruments, and a more detailed set of criteria grounded in the jurisprudence of the European Court of Human Rights.
The twelve areas of the PSNI's work assessed in the first Annual Report on Human Rights compliance (2004–2005) were: (1) the PSNI programme of action (2) the adequacy and effectiveness of PSNI human rights training (3) compliance of PSNI policies with the Human Rights Act (4) compliance of PSNI operations with the Human Rights Act (5) adherence by PSNI officers to the Code of Ethics (6) complaints, discipline and civil actions raising human rights issued (7) public order (8) covert policing (9) victims rights (10) the treatment of suspects and (11) human rights awareness among PSNI officers. Space does not permit me to examine each of them in this article and therefore I have chosen to focus on four: the PSNI programme of action, training, policies and human rights awareness among PSNI officers.
Before doing so, it is important to set out the three broad principles that we agreed with the Policing Board and with the PSNI would govern our monitoring work:
- First, that it is the PSNI's performance as a whole that is being monitored: i.e. success as well as failure. Evidence of human rights breaches tends to be easier to find than evidence of human rights compliance, particularly when there is a sophisticated, well-resourced and effective police complaints mechanism in place and we therefore had to devise a means by which compliance could be measured as effectively.
- Second, that the process of monitoring should be dynamic and one in which the PSNI feels that there is a positive dialogue between it and the Policing Board, which recognizes and addresses problems as they arise. We were anxious that the process of monitoring should on the one hand equip us in understanding the difficulties that face police officers on the ground and, on the other, assist the police in understanding and responding to our findings when they were negative.
- Third, that the process of monitoring should not be retrospective: what the Police (Northern Ireland) Act requires is monitoring of the PSNI's compliance with the Human Rights Act-not how well the police may or may not have complied with their obligations in the past.
Those principles served us and, we hope, the PSNI well. In the last 3 years we have spent a great deal of time talking to those responsible for the PSNI's work on human rights, examining numerous documents and observing events and incidents as they happened. In the course of preparing our special reports into the policing of parades in Northern Ireland, we sat in on operations, observed operational decision-making in the command suites and on the ground and reviewed all the available documentation and records. We also spent a great deal of time with those affected by the PSNI's work and consulted interested parties regularly. It is a tribute to the PSNI that in carrying out our work, we have not been refused access to any officer, or to any incident or event that we have wanted to observe. We were also given unrestricted access to any documentation we asked to inspect. Such an open, transparent approach to policing is, in our experience, unprecedented.
The Policing Boards’ Annual Human Rights Report 2004–2005 sets out the details of our findings. It is deliberately comprehensive. We took the view that our findings would only command support if those reading the report could follow our working and assess whether we have reached sound conclusions. In the report we made a large number of recommendations: over sixty in total. That does not mean that we found widespread lack of compliance with the Human Rights Act. We did not. In many respects we were very impressed with the work the PSNI has undertaken in the human rights field. The large number of recommendations in our report reflects the principle set out above, namely that the monitoring process should be a dynamic dialogue which recognizes and addresses problems as they arise.
The response of the PSNI to the Policing Board's first annual human rights report was crucial. In December 2005, the PSNI took the decision to publish its Human Rights Programme of Action 2005–2006 setting out in detail how the police intended to comply with each of the recommendations we made in our first Annual Report. The approach of the PSNI was encapsulated by the Chief Constable, Sir Hugh Orde, in the foreword:
‘The Board's Human Rights Advisors undoubtedly provide a challenge to the police service, but a challenge with which we are very happy to engage ... the police are prepared to accept new ideas and innovations that improve our service to the benefit of the whole community. We do seek to set the standard for other police services to follow, and just as the European Convention on Human Rights is a living instrument, we recognize that the police service must continue to develop and change’.
This was a very welcome response, in keeping with the very positive dialogue on human rights that now exists between the PSNI and the Policing Board.
Turning to the areas covered in the first annual human rights report, we first noted that the PSNI has adopted a new oath in the form recommended in the Patten Report. Every police officer in Northern Ireland has now declared and affirmed a commitment to uphold human rights in discharging his/her policing duties. That declaration has been given force by its inclusion in the new Code of Ethics, which was adopted in March 2003.
The Code of Ethics sets out the principles that are intended to govern the conduct of all police officers. It is unique in that it is based entirely on human rights principles drawn from standards found in the European Convention on Human Rights and in other relevant human rights instruments, including the UN Basic Principles on the Use of Force and Forearms by Law Enforcement Officials and the UN Body of Principles for the Protection of all Persons under any form of Detention. The Code applies to all members of the PSNI, whether on or off duty, and regardless of rank. Any breach of the Code can give rise to disciplinary action.
We also noted that a specialist human rights lawyer has been appointed to the PSNI legal team in accordance with the recommendation in the Patten report. The PSNI human rights lawyer has been involved in devising training and policy initiatives and is now regularly consulted by the police when operations are planned.
The Policing Board's Annual Human Rights Report 2004–2005 also addressed the question of training in some detail and endorsed the approach set out in the Patten Report, namely that effective training in human rights principles is fundamental to any organization committed to compliance with the Human Rights Act. The PSNI has taken a number of steps intended to achieve compliance with the Human Rights Act in this area. Some initial work was done before the Human Rights Act came into force, including a 2 day seminar for PSNI training staff in December 2001 at the Human Rights Centre, Queen's University, which included an introduction to the Human Rights Act and explored the relationship between human rights and other laws. Since then, there has been a specific 1 day human rights module on the PSNI trainers' course. This was initially delivered by the Human Rights Centre, Queen's University, but is now delivered by the PSNI human rights legal adviser.
During 2001, human rights training was also delivered to all police officers and ‘front line’ support staff as a 1-day course, which included a human rights workbook. An aide memoir and distance learning pack were issued to all officers. A human rights module was also included in the training for student officers and part time reserve officers.
More fundamentally, as a direct response to the Patten recommendation that all members of the police service should be instructed in the implications for policing of the Human Rights Act, and the wider context of the ECHR and the Universal Declaration of Human Rights, the PSNI devised the Course for All, which was then delivered to all members of the PSNI, both police and civilian. This was a bold initiative and in total 85% of all police officers have now completed the course.
The task that the PSNI has now set itself is to integrate human rights training into all courses. We have examined how effective this exercise has been so far and made a number of recommendations intended to improve the exercise. We have also recommended that, in addition to internal evaluation, the PSNI's training on human rights should be subject to external evaluation by an independent specialist body. The Northern Ireland Human Rights Commission has carried out this evaluation in the past and published its findings in four reports.
Turning to police policies, the Policing Board recognized in its first Annual Human Rights Report that it is fundamental that all of the PSNI's policies should set a framework for police decision-making and conduct that requires, and seeks to ensure, human rights compatibility in all areas of police work. We noted the steps that the PSNI has already taken to this end: for example, when the Human Rights Act came into force in 2000, an initial audit was carried out by the PSNI Human Rights Unit. Since then, it has been the duty of policy writers to ensure that any new or amended policy is human rights compatible. This task is now regulated by the General Order on Policy, Procedure and Guidance, which was adopted in June 2004. Despite its rather uninspiring title, this general order sets up a rigorous and impressive framework for ensuring that all PSNI policy is clear, consistent and human rights compliant. It is an excellent initiative. The intention is that all PSNI policy and associated procedures and guidance will be created, disseminated and reviewed in accordance with it. Among other things, it requires each policy to set out an explanation of the impact of the Human Rights Act 1998, the Northern Ireland Act section 75, Freedom of Information Act 2000 and other relevant legislation on the policy. It also requires periodic review of all policies at no more than 12 month intervals. The review should assess (1) the evidence for the continuing requirement for the policy, (2) the impact of the policy; (3) the success of the policy in meeting its objectives, (4) the relationship of the policy with other PSNI policies, procedure or guidance, (5) the reaction of users to the policy.
Turning to the last of the four areas of policing examined in this article—human rights awareness in the PSNI—it is obvious that the promotion of human rights awareness of PSNI officers at all levels is vital not only to facilitate the development of a tangible human rights culture within the PSNI but also to demonstrate the PSNI's commitment to the human rights agenda in its dealings with others external to it.
As part of our work, we sought to address the level of human rights awareness in the PSNI as a whole. To that end, together with the Assistant Chief Constable with responsibility for human rights and her staff, we devised a human rights questionnaire, which was sent to all PSNI officers, including full-time and part-time reserves. It was intended to guage basic human rights knowledge and to give some indication across the service of the extent to which a human right culture existed, if at all. There were seventeen questions. The first ten questions were multiple choice, intended to guage how well officers were able to answer general human rights questions. For each question, there were four possible answers: one right, one nearly right, one clearly wrong and one nearly wrong. That, we hoped, would allow us to evaluate not only the number of right answers, but also how far wrong officers were when they failed to provide the right answer. The rest of the questions were open ended questions intended to guage police officers attitudes to human rights more generally. There were no right or wrong answers. They dealt with how officers perceived their own human rights knowledge, how useful they found training, and how they dealt with human right issues when they arose in their day to day policing. We received 2,739 replies to the questionnaire, which, we think, makes it the most extensive attempt to date to measure human rights awareness in a public authority anywhere in the UK (and possibly Europe).
The answers to the first set of questions were encouraging. They showed a good level of knowledge across the ranks of the PSNI, which did not vary enormously with length of service. High percentages of officers chose the right or nearly right answer to many of the questions. Interestingly when it came to discrimination, the bulk of police officers chose the ‘nearly right’ answer which protected against discrimination to a greater extent than is actually required under the European Convention on Human Rights.
In addition to the questionnaire, we set up focus groups in Foyle, Newry/Lurgan, Belfast and Fermanagh, in which PSNI officers of differing ranks participated in discussions about human rights. The results showed that police officers in Northern Ireland believe they have an adequate knowledge base of human rights, but acknowledge that it is a large, constantly changing field. The distinction between absolute and qualified rights was understood and all those who participated recognized that the prohibition on ill-treatment as an absolute right. However, there was some confusion regarding the right to life because it was seen as absolute in one sense, but also qualified in the sense that there are circumstances when life can lawfully be taken.
Most officers thought their training in human rights was adequate. There was a sense that, rather than providing refresher courses, human rights should be incorporated into all other training courses and should be ‘part and parcel’ of the training, rather than an appendix.
In our Annual Human Rights Report 2005–2006 we followed up on the PSNI's progress in implementing the recommendations that were made in the 2004–2005 Annual Report. To that end we revisit each of the twelve areas of the PSNI's work that we examined that year. We also examine two new areas: policing with the community and privacy and data protection.
During 2005–2006 we also took some time to work at the district level both with the police and with those that are policed. We held a series of in-depth meetings with a number of District Command Teams across Northern Ireland to investigate how they sought to comply with the Human Rights Act 1998 in their respective areas. We have also met representatives of all of the District Policing Partnerships (some several times) and numerous interest groups to hear their views on the performance of the PSNI. This process has given us an invaluable insight into the work undertaken at the local level and assisted us in formulating our recommendations in 2005–2006.
When each of the sixty recommendations made in our first Annual Human Rights Report was broken into its constituent parts and the recommendations made in our two special reports on the policing of parades were added, there were ninety nine recommendations made by us to the PSNI on human rights matters in 2004–2005. Inevitably they ranged over a broad area and varied between the very general and the very particular. In 2005–2006 we were able to report that sixty one of our recommendations have been fully implemented and a further seventeen partially implemented. That means that positive action has been taken in relation to seventy eight of ninety nine recommendations. In some areas, for example in the areas of complaints and discipline, public order and covert policing, there has been 100% compliance with our recommendations. That is a considerable achievement.
On a less positive note, twenty one recommendations remained outstanding. In some areas, for example in the areas of training and policy, the number of outstanding recommendations is high. We discussed this with the PSNI and we were satisfied that this does not reflect an unwillingness to comply with our recommendations. The failure to implement all of the recommendations in our annual report 2005 largely reflected difficulties in the scale and timetabling of the necessary tasks. To some extent that was understandable and we adjusted the recommendations where it is clear that work has already started. But it is clear that in some areas more could certainly have been done. We highlighted these in the hope that similar problems will not occur again in the future.
In 2005–2006 we made fewer recommendations, forty five in total. To some extent that reflects our satisfaction that the positive dialogue that we have sought to engender between the PSNI and the Policing Board on human rights matters is working well. Most of the new recommendations relate to issues that have arisen during the course of our work that year but some relate to outstanding matters from the previous year. We will return to each of them in this year's annual report, which is due for publication in September 2007.
Hopefully this gives a flavour of the work undertaken by the Policing Board of Northern Ireland in monitoring the performance of the PSNI in complying with the Human Rights Act. In my view, the monitoring exercise is significant in two respects. First because it is an important aspect of the PSNI's compliance with human rights. Second because the discharge of the Policing Board’ statutory duty deserves examination in its own right as an exercise in how human rights can be monitored effectively. The four human rights reports so far are very much the first of their kind and it would be interesting to know how other police services and their respective oversight bodies have approached the question of compliance with the Human Rights Act 1998.
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In 2003 Kier Starmer QC was appointed to advise the Policing Board of Northern Ireland on their statutory duty to monitor compliance of the Human Rights Act 1998 by the Police Service of Northern Ireland (PSNI). In the article below, the author looks at the background to this unique arrangement and examines how the PSNI have sought to ensure compliance with the Act.
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