Equality issues

You can read my two latest blogs on www.lawthink.co.uk.

Equality for the intern generation of 13 December 2011
Should marital status determine a parent's right to adopt? of 17 December 2011

For Queen and Country?

A nation’s anthem can inspire. A stadium can erupt into song and carry a team to victory. The respect and loyalty displayed by players and fans alike during the exchange of anthems is testament to the power of sport.

The anthem of the Northern Ireland Association Football club is “God Save the Queen”, which is the Anthem of the State of the United Kingdom. This is also the anthem for the England Association Football team, meaning that when England plays Northern Ireland, both sets of fans share their team’s anthem. Though part of the United Kingdom, Wales and Scotland pride themselves on their own, distinct anthem. The current Northern Ireland anthem links the team inextricably to the Queen of England, despite the fact that the Monarch is not the Head of State of a significant proportion of people who live in Northern Ireland. This, in itself, is divisive.

Until the partition of Ireland in 1921, the Irish Football Association (IFA) had governed soccer across the island. It was a decision by clubs in Dublin to form the Football Association of Ireland (FAI) that instigated the division in the island’s sporting unity. Since this schism, the chants throughout Windsor Park have come to be perceived by some as hostile towards other cultures within the region. Of course, this attitude is not unique to the IFA; most soccer stadiums across the world involve such behaviour. However, the relevant question for the IFA now is how to run a truly representative sports club.

Gerry Armstrong, a veteran of Northern Ireland football, has said this week that there should be a debate about the choice of anthems played before Northern Ireland matches. It is argued that an anthem should be inclusive of the present demographic in the region and more sensitive to its shared heritage. Indeed, many sports in Ireland are today thriving with a cross-community fan base – golf, rugby and, increasingly, cricket. In fact, it is only a minority of sports that are not organised on an all-island basis.

In the upcoming London Olympics in 2012, an agreement between the British Olympic Association and the Olympic Council of Ireland stipulates that athletes from Northern Ireland may represent either Team GB or Team Ireland. Team GB refers to Great Britain in its title, but extends its claim to include willing competitors from Northern Ireland. Team GB thus claims to represent all of the United Kingdom. Northern Ireland is not part of Britain, and so to be impliedly subsumed into Team GB is nominally incorrect. Team Ireland welcomes athletes from Northern Ireland, but principally refers to the Irish Republic. The ultimate choice lies with the athlete, though it does seem misleading that a person from Northern Ireland should compete under the name of Great Britain, a distinct island. If the British camp were to call itself Team UK – indeed if ‘Britain’ and ‘the UK’ were not erroneously treated as synomymous by politicians and press – this territorial confusion would be avoided.

Gerry Armstrong’s comments come in the same week as Peter Robinson’s message of a “new Northern Ireland”. In a more inclusive and less sectarian society, a wonderful opportunity to share culture is in the celebration of sport. In light of the controversial switching of players' allegiances between the two teams on the island, the IFA and FAI will have to discuss the growing difficulties sooner or later. The spirit of pride evident during the most recent Rugby World Cup demonstrates how a single Irish team can be a positive and successful ambassador for this island on the international stage. The debate on an appropriate national anthem for Northern Ireland is a necessary first step towards a more inclusive representative, but it is hoped that the advantages – both sporting and cultural – are realised before long.

Time is a Healer...

Over on lawthink, I have published another blog on the Office of the Police Ombudsman for Northern Ireland (OPONI):

http://www.lawthink.co.uk/2011/11/time-is-a-healer-–-but-only-when-the-truth-comes-out/

It deals with the apparent legal loophole restricting Al Hutchinson's office from carrying out investigations into killings at the hands of State forces.

International Restorative Justice Week

Hello all,

I have published an article on Restorative Justice, entitled "Restoring Human Dignity", over on www.lawthink.co.uk. To view it, click here.

Dónal

Other blogging

My most recent blogs on www.lawthink.co.uk were on:

• the proposed demise of the International Criminal Court (23 October 2011); and
• the legality of the Occupy movement in the United Kingdom (3 November 2011).

A defence of the Rule of Law (not dissident Republicanism)

Just because someone may be accused, or even convicted, of a heinous crime does not render him undeserving of legal counsel. The law functions to uphold justice and lawyers facilitate access to that justice. It is essential that the system convicts guilty offenders and treats them accordingly. However, in order to establish guilt, lawyers must debate the admissible evidence before a judge. The integrity of the court is vital to this procedure, and only with cogent discussion can legal proof be established. Otherwise, there is the risk of miscarriage of justice.

Colin Duffy is on remand in HMP Maghaberry, charged with the murder of Sappers Mark Quinsey and Patrick Azimkar in March 2009. His family claims that it has been subjected to abuse as the hands of the Police Service of Northern Ireland (PSNI) for years. It believes that it has been systematically harassed by police officers in the region, by members of the Royal Ulster Constabulary and now of the PSNI. The political party, éirigí, has campaigned on this issue with assistance from Pádraigín Drinan.


The guilt of an individual before the law is indeterminable until a trial or hearing has ended. The lawyers conducting the case must act professionally and fairly in espousing their respective arguments. Just as lawyers must treat their clients indiscriminately, so too must the State treat individuals over which it has jurisdiction without discrimination. In instances of State brutality, the integrity of government agents is itself damaged.


Regardless of what he is charged with, or what he may eventually be convicted of, Colin Duffy should not be treated inhumanely. Degradation of the nature experienced by hundreds detained in Northern Ireland, Iraq, Kenya and Guantánamo Bay is wrong. It is wrong on many levels.

The principle reason that such treatment is wrong is the existence of the Rule of Law. This is the concept that certain things are fair and right. It upholds a system of justice prioritising the dignity of the person and fairness in the administration of the law.

Second, State brutality breeds resistance. It can be seen in reactions to the many examples of Metropolitan Police actions (most recently, the death of Mark Duggan). Unless individuals view the government as fair, they will obey the laws of the State with reluctance. Particularly in situations of oppression – familiar to Britain’s imperial history – violence begets violence. Whether committed by native rebels or by colonial/governmental forces, human nature ensures a cycle of violence.

Third, the United Kingdom today has legal obligations. Internationally-binding treaties require the State to uphold certain standards of human rights and civil liberty. This is widely known and is often taken for granted.

Fourth, for the State to act in this way towards individuals in its custody is an abuse of power. Just as a prisoner may have broken the laws of the land, so does the State in mistreating that prisoner. The State cannot expect to be respected while treating individuals in this way. Capital Punishment is wrong for the same reason.

Thus, regardless of what someone has done, it is not the State’s role to punish arbitrarily. It is the Rule of Law, as exercised by the judiciary, that dictates how someone should be punished. Even if Colin Duffy did murder members of the British army or the PSNI, the allegations surrounding the conditions of his detention, if true, are disgraceful. To protect his human rights is not to support his cause; it is to defend the Rule of Law.

lawthink

I have been blogging for the past few months over on www.lawthink.co.uk. The website discusses mostly human rights law issues.

The newest blog is on David Cameron's decision not to grant an inquiry into the murder of Pat Finucane.

Community Groups Condemned

This week, Jim Wells MLA complained about the Bryansford Ladies GAA collecting money at a supermarket in Newcastle, County Down. Mr Wells is a DUP councillor in the area, and is vocally opposed to public fundraising by members of the local Gaelic Athletic Club. On BBC Radio's Talkback, Mr Wells made clear that Unionists in the area would not be comfortable donating to an organisation with historical links to the Republican movement. He explicitly made reference to a GAA trophy named after IRA hunger striker, Bobby Sands.

Representatives from Sinn Féin and the Alliance Party have spoken out against Mr Wells' "churlish and negative" comments, supporting the work done by the GAA in the community. Recently, I went to a panel debate hosted by the Young Unionists entitled " The GAA and the Orange Order are part of the problem in Northern Ireland, not the solution". A deliberately provocative motion, there were a few heated exchanges. Nonetheless, it was an interesting debate.

The GAA, as recognised broadly across the community, is fundamentally a community and sporting organisation. The repeal of GAA Rule 21 permitted members of the British armed forces, including the Royal Ulster Constabulary, to play Gaelic Games, and rule 1.12 stipulates that the GAA is a specifically anti-sectarian and anti-racist organisation. It has gradually adapted to 21st century Ireland and has severed ties with its Republican past. There remain elements of Irish Nationalism in the sport; the Irish language, National Anthem and tricolour are core facets of this sporting culture. Of course, there is no denying its roots, but the GAA - especially the Ulster Council - has done its part to modernise the organisation. Now it is up to society to see it in that light.

The Orange Order is explicitly pro-biblical Protestantism and its membership is limited to Protestants. Though conflicting with the DUP's leader Ian Paisley for years, the Orange Order has been very much involved in Unionist politics in Northern Ireland. The Orange Order runs a number of charitable ventures and fundraises to this end. Its parades celebrate the Order's civic and religious freedom. Although the Orange Order has been compared to the Ku Klux Klan, it has many virtues - mostly Christian, Unionist and its own sense of community cohesion.

Jim Wells' complaints about community groups fundraising in supermarkets must be viewed as complaints about community-based and community-orientated activities. Two parallel community groups - the GAA and the Orange Order - should be allowed to fundraise where they wish, so fulfilling an invaluable service to their membership. It is important to look at the benefits. The GAA benefits all its members, from whatever background. Jim Wells should bear this in mind when stirring up bad feeling towards what is principally a sports team.

Communities Can Benefit From Sentencing

The prison population has breached the 86,000 mark, a huge proportion of UK residents to be living an incarcerated existence. It confirms the UK’s pole position in holding the highest prison population per capita in western Europe. It wouldn’t necessarily be a problem were it not for the evidence that prison sentences do little to prevent future antisocial behaviour. There is every reason to believe that the young people to whom these exemplary sentences have been handed down will emerge all the more disaffected and further marginalised. What good will a few months in a cell do for a criminalised youth whose only prospects upon release are Jobseekers’ Allowance and Housing Benefit?

The Howard League for Penal Reform believes that the remedy to our “sick” “facebook generation” does not lie in the criminal justice system. It is argued that these sentences are “disproportionate and indeed devalue our response to more serious crimes.” Its Director of Campaigns, Andrew Neilson, has posited that swamping the courts results only in increased criminal appeals, further burdening the judicial system.

The Howard League for Penal Reform has for years promoted the use of community sentences, and this form of sentencing received support from the Justice Secretary in December 2010. In that Green Paper, Ken Clarke committed to reforming offenders and reducing the prison population, openly recognising the merits therein. The question as to where this commitment now lies amidst Cameron’s no-mercy approach is an apt one.

These sentences will leave an already straining prison system buckling under the burden of an unmanageable task, susceptible to collapse at any moment. With such stretched resources within England’s prisons, it would not be surprising if under-pressure staff were presented with large-scale prison riots. After all, they are housing experienced rioters at this stage. A better response may be to encourage rioters to participate in their local community - this would vividly illustrate the grassroots impact of their recklessness. Community sentences involving clean-up services and community cohesion would grant these rioters a perspective while simultaneously benefiting local areas. There is no practical advantage to locking up the youths concerned and providing no worthwhile services/activities inside the prisons (there is not the resource, nor time, to do so) before they are released and return to the culture from whence they came. More valuable would be a punishment bestowing more responsibility; a sentence enforcing voluntary community work would do more for these kids' image of their own city than any prison sentence.

I hope that a different attitude is demonstrated with regards North Belfast riots next summer. Perhaps by then we will have learned something from our English neighbours. In the meantime, Ken Clarke should have the integrity to stand behind his own policy, the benefits of which he is very well aware.

Tá súil agamsa

The bid for the Irish Presidency has instigated so much media hype that it has trivialised somewhat the historical significance of this position. The Head of State of the Irish Republic that is Éire is a symbolic achievement for centuries of Irish who rejected the monarchy as their own. Ireland's previous Head of State was King George VI of the United Kingdom of Great Britain and Ireland, but this ended conclusively in 1949 with the Republic of Ireland Act 1948 - between 1937 and '49, the Constitution had not clarified whether the Irish President was Head of State rather than the British head of the Empire. Regardless, Irish freedom to elect its own President has come at a price; the Irish War of Independence led to the Anglo-Irish Treaty (ratified in January 1922), which in turn sparked the Irish Civil War.

With the 2011 election looming, there has been much speculating about candidates. Since the characteristically dramatic exit of Senator David Norris, and the brief but worrying consideration of Gay Byrne as a realistic prospect, populist debate has spawned across the internet. Now there is talk of GAA legend Micheál Ó Muircheartaigh and a desperate Facebook push by thousands for Ireland's adopted son, Martin Sheen (who used to live in Galway!!), to take the mantle. Realistically, though, only someone with as much gravitas, integrity and dignified vision as Michael D Higgins should be in the running. His inspirational, impassioned speeches in the Dáil are truly worthy of youtube hits.

My biggest problem with this year's Presidential race is that I cannot vote. I am an Irish citizen, resident in the United Kingdom of Great Britain and Northern Ireland. I have benefited from a British system of health provision, education and economy. However, my head of State is not Queen Elizabeth II. My Head of State brandishes the same harp on their passport when they travel as is printed on mine. And nobody can tell me otherwise (if you've difficulty with that, my argument is legally sanctioned by the Good Friday/Belfast Agreement of 1998).

Sinn Féin is expected to confront the exclusion of Northern Ireland residents from voting for the Irish President via a Private Members' bill in the Dáil. Sinn Féin has my full support on this issue, and I am glad that SDLP Youth and Fianna Fáil's youth wing have agreed with this motion.

I hope that my right to have my voice heard on this issue is respected. Otherwise, I will continue to lend my active support to this campaign. My next hope is that a genuine Irish Statesman is elected. After the fantastic example set by Mary Robinson and Mary McAleese (a northern Nationalist herself), the incoming Irish President has a whole lot to live up to. I hope s/he can. Tá súil agamsa.

"All that you thought was true can be untrue in just a second."

If you threaten someone with homelessness, they're bound to abstain from crime, right? So some MPs think. Better yet, threaten households with homelessness if one family member commits an offence. That'll teach them the meaning of responsibility. The Anti-social Behaviour Act 2003 - the source of the infamous ASBOs - grants power to registered social landlords (RSLs) to take action against tenants who've caused disturbances in their neighbourhood. Even secure tenancies can be "demoted" by a court order. What David Cameron et al wish to do is to extend these RSLs' powers. Homelessness deters anti-social behaviour, right?


My question is: what about ex-offenders? A large number of men and women are frequently released from prison after having been cut off from the outside world for months, or years. Are they likely to engage in anti-social behaviour? Should they be given social housing at all, after what they've done?! Here's another idea. As a deterrent, let's threaten them with withdrawal of their benefits. Their sense of entitlement will soon dwindle once they realise they have to abide by the law in order to avail of their rights. After all, criminals don't deserve rights, right?


In reality, these Tory laws would result in further marginalisation of individuals who have already, for whatever reason (poverty, disenfranchisement, pure evil), resorted to criminal activity. I don't presume that these laws would only apply to rioters; burglars and thieves would surely be included too! So, once these individuals are evicted, homeless, unemployed and without income (oh, I know, I'll turn to drugs!), they'll soon learn that they have to be responsible for themselves and their community. They'll learn to look up to all the role models we are lucky enough to have in the UK and Ireland.


The defining event of our generation is, most certainly, the Recession. Like the Twin Tower Attacks a decade ago, and the fall of the Berlin Wall before that, the Recession will dictate the mood of the next ten years or so. I believe that summer 2011 was the tipping point. With the markets close to crashing again, a corrupt media scandal exposed, and England in riotous flames, things are pretty bleak. Surely they cannot get worse. Things have to change, right?


Unfortunately, what we lack in the UK and Ireland are role models. Nobody has been able to lead us away from this inevitable collapse; it has been looming for years. The leading minds of their own generation (MPs, bankers, etc.) have taken what they feel is theirs and have gifted us the leftovers. Our politicians have let us down and proved that power corrupts. The world's bankers have displayed their own notorious ethical standards. Some religious leaders have been found out for the irresponsible wretches that they are. Elements within the police and the press have been exposed as selfish and wayward. These are the leaders of our society.


The truths we were taught about governing and democratic accountability have left us flailing. This generation, starved of opportunity, must strive for a new truth. Together.

North Belfast Housing Distress

Yesterday, I visited Long Kesh. I walked through the yard where Billy Wright was shot. I stood in the hospital cell where Bobby Sands passed away. I walked through one of the H-blocks and listened to stories of what went on in the 1970s and '80s. It was a disturbing environment - the dilapidated silence as powerful as screams echoing through the corridors.

OFMdFM has launched a regeneration scheme, which will turn part of the neglected prison grounds into a Peace building and Conflict Resolution Centre. It will be a space to remember the history of the site, from WWII through to the peace process. It will be an enlightening, positive place. This, I believe, is what Nelson McCausland MLA, the Minister for Social Development, has in mind for Crumlin Road gaol and Girdwood barracks. However, he has come under a lot of scrutiny for the decision not to include housing in the project.

SDLP leader Margaret Ritchie initiated a housing development scheme on the Girdwood site as Minister for Social Development, but the current Minister has changed Department policy so as to remove the housing plans. The SDLP's Alban Maginness MLA has criticised this u-turn, arguing for the initial plan to develop 200 much-needed buildings. On the contrary, Nigel Dodds MP accused the SDLP of sectarian gamesmanship, calling the plan for social housing an example of electioneering. Whether the housing development would have materialised with an SDLP Minister, we can only guess.

The issue is controversial because there is a desperate need for accomodation in the area. The levels of housing distress are especially high amongst the Catholic community in North Belfast. The Housing Executive waiting list in the local area is almost 2,500, with the majority coming from a Nationalist or Republican background. For this reason, there have been strong allegations of sectarian governance (coming specifically from Sinn Féin's Conor Maskey in recent days). So is the decision to reject this opportunity for housing development in North Belfast an affront to the rights of those on the waiting list?

Although it may seem to be an extreme accusation, Mr McCausland's decision to renege on a Ministerial commitment to provide citizens with housing is arguably a denial of basic rights. I look forward to the outcome of the inevitable consultations with local interest groups, which I presume will make some strong arguments for their case.

London's Plague

Having listened to a Radio 4 debate on the way home from Belfast, I have been wondering about the causes of and motivations for the London riots. Social deprivation? Or recreational criminality?

Ros Griffiths argued that there is a "catalogue of issues" and that the "fabric of society has broken down." By this logic, the violence is a tremor resulting from the impact of recession and consequent Government cuts, which will shape the coming decade. With high levels of unemployment and disenfranchisement amongst young Londoners, the death of Mark Duggan merely sent a ripple of desperate frustration across London. What has happened was inevitable.

Max Wind-Cowie, on the other hand, believes the riots to be nothing but an expression of criminal greed. Generations of disrespectful attitudes towards authority figures can only but cultivate a culture of delinquency amongst the London 'underclass'. On this perspective, there is no excuse - no social or political explanation - for the weekend actions of balaclava-clad boys looting their neighbours' shops.

So which is it? Obviously, there is a blend of both. I think there is a hard core of wannabe rioters (perhaps looking to the Ardoyne for summer inspiration) who are intent on retaliating for police recklessness; one might argue that they are hijacking the tragedy of Mr Duggan's death for their own questionable purposes. With the momentum of this destructive surge, there are bound to be some frustrated young people whose energies have otherwise been exhausted by the vision of London they've inherited. These are the fringe actors, but together they constitute a plague that is sweeping London.

Target the ringleaders and one might quell the violence. What will remain will be the discontent of a generation. Now, how to target that?

Murder By Government?

There has been a public call for a debate in the House of Commons about the status of capital punishment in the United Kingdom. The Death Penalty was abolished in Britain in 1964, while in Northern Ireland, it was not until 1973 that it was outlawed. In spite of this, no executions took place in Northern Ireland after 1961. Since British and Irish society has changed so much since the early '70s, perhaps we should indeed be debating the reintroduction of capital punishment.


Words like "uncivilised" and "inhumane" are thrown around in opposition to the death penalty. However, 42 nations across the world maintain it and recent developments have proved there is popular concern about this issue. It cannot be denied that Paul Stains from Restore Justice has a case to answer. Andrew Turner MP has also staked his support for the death penalty for  certain, "horrific" crimes. With such high-profile media coverage, a national debate has most certainly already begun.


There are three arguments, in my view, against the imposition of capital punishment. Firstly, where the State kills convicted criminals as a form of punishment, it is stooping to the standards of the ganglands from which those murdering thugs have emerged. Instead of attempting to govern with integrity, the State is throwing its weight around. Secondly, there has been such an uproar about torture and collusion allegations on the part of the British police and armed forces. Can the public oppose this violation of civil liberties with one placard, whilst with the other, condone the ultimate mistreatment of another human being? Thirdly, there must be an answer to the question as to what capital punishment achieves. Sure, it will lower the prison population and reduce public spending on the long-term maintenance of criminals. At a moral level, though, is it an effective mode of 21st century justice? Or is it a "relic of the past"?


In a clear example of sober logic, Anthony Barnett argues that  "the toffs need the tabloidites to prove that they are guarding the gates from the barbarians." Clive Stafford-Smith, whose preaching style I have witnessed in person, would argue against capital punishment based on  almost twenty years of practical legal experience. We should not succumb to 'Daily Mail politics', but should open our ears to those who really understand the implications of capital punishment for government and for society. Jeffrey Donaldson MP is right to support the debate; now he must listen and responsibly lead the people of Northern Ireland on this topic, and on others.


The floor is open.

Ill Prisoners

Regardless of what an individual has done, to deteriorate in a prison compromises his/her dignity. Debilitated as Brendan Lillis is by Ankylosing Spondylitis, his health should not be a political issue. He is a very ill human being, and should be treated as such.

Compassionate release entails remaining on licence; this is not freedom. David Ford seems to have taken substantial efforts to ensure his decision is the right one. No better treatment for Mr Lillis' condition is available outside of HMP Maghaberry, though all would agree that his own home, albeit on licence, would be a more pleasant environment in which to suffer. The judgement that Brendan Lillis is "dangerous", and therefore doesn't qualify for compassionate release is highly dubious. His suffering of Ankylosing Spondylitis is tragic, but the real tragedy is the finding of the Life Review Commission.

It begs the question as to whether the scope for compassionate release should be widened, facilitating the release of more prisoners who suffer from ill health. However, if so, the counter-question is: don't we want convicted individuals to fulfil their sentence?