Brexit Archives - Irish Council for Civil Liberties

Equality complaint made against Translink for facilitating discriminatory passport checks on cross-border buses

Belfast/Dublin, 17 September 2019

The Committee on the Administration of Justice (CAJ) has submitted a breach of equality scheme complaint against Translink in response to the company facilitating discriminatory passport checks on its cross-border transport services. The complaint has been made by CAJ on behalf of 17 directly affected passengers.

In addition to submitting the equality scheme complaint to Translink, CAJ has also joined with its sister organisation, the Irish Council for Civil Liberties (ICCL), in writing to the Garda Commissioner, the Policing Authority, and the Irish government’s Minister for Justice and Equality to draw attention to its concerns about the discriminatory manner in which the passport checks are being carried out by the Garda National Immigration Bureau (10).

Over recent months, concern has been building over the increasing number of passport and identity checks being carried out on cross-border transport routes within the Common Travel Area (CTA).

Officers from the Garda National Immigration Bureau (1) have resumed practices of stopping and boarding buses crossing the land border to conduct passport checks. Meanwhile, UK Home Office Immigration Officers have been conducting similar checks on passengers disembarking cross-border bus services or arriving at seaports and airports in Northern Ireland.

Witness and victim testimony indicates that these checks are frequently conducted on the basis of (at times quite blatant) racial profiling – the form of racial discrimination where persons are singled out on the basis of skin colour or other ethnic attributes.

The checks are contrary to both UK and Irish law, and stated government policy. UK law explicitly precludes passport checks being conducted within the CTA (2) and UK government ministers have given clear assurances that no such checks are to start taking place (3).

The Irish government has given similar assurances that it will not introduce a ‘hard border’ on the island of Ireland as a result of Brexit. Under current Irish Law (4), some persons are required to carry and produce passports when crossing the Irish land border, but this does not apply to Irish citizens or other EU citizens (5). However, there is no way of telling the difference between those who are subject to such duties and those who are not.

Úna Boyd, CAJ’s Immigration Project Coordinator, commented,

“It seems that the hard border already exists for those who are targeted due to factors such as their skin colour or accent. The facilitation of passport controls on the island of Ireland also aids in introducing an element of a hard border at a time when a ‘no-deal’ Brexit seems possible and such a subject is a matter of extreme concern to many people.”

Translink – as a public authority in NI – is under a duty not to facilitate racial discrimination, and to ‘equality test’ the policy decisions it makes under its legally binding ‘equality scheme’. Equality testing involves a process of initially ‘equality screening’ policies to assess their impact. Where policies are likely to have adverse impacts, an Equality Impact Assessment (EQIA) and public consultation may follow (6).

Translink have confirmed in correspondence with CAJ (7) that they have undertaken none of these Equality Scheme processes on their openly stated policy of facilitating such passport checks on their buses (8). As a result, CAJ – along with the 17 complainants – decided there was clear grounds for submitting the breach of equality scheme complaint to Translink. The complaint was made to Translink on Monday 2 September 2019.

Úna Boyd explained,

“Initially when we enquired about this policy, Translink told us they were ‘obliged’ to facilitate the boarding of their buses for such passport checks. However, when we asked Translink what these legal obligations were, they were unable to answer. It appears they now know there is no proper legal basis for such checks, or are still to check, long after the policy has been adopted.”

Liam Herrick, Executive Director of the ICCL, said,

“The lack of legal basis for such cross border checks is of serious concern. Even more worrying are the allegations that members of An Garda Síochána may be engaging in racial profiling. This is a form of discrimination that would constitute a clear violation of An Garda Síochána’s human rights obligations and of their public sector duty to prevent discrimination. Such practices must be properly investigated and immediately prohibited.”

Under Translink’s equality scheme, they typically have to respond to complaints within one month (9).

The End Deportations Campaign has been logging witness testimony of passport checks carried out on cross-border transport. You can report such instances through their online reporting tool: https://edbracistreporting.typeform.com/to/kl6yCY.

Footnotes

The Garda National Immigration Bureau is a unit of Ireland’s national police force, An Garda Siochana, and is responsible for deportations, border control and investigations related to illegal immigration and trafficking in human beings.
The statutory basis for powers of passport/immigration control in the UK is the Immigration Act 1971. This contains passport control powers, including powers of examination (questioning) and duties to produce passports/id cards on request. However, local journeys in the CTA, including on the land border are explicitly exempt from the use of such passport control. Section 1(3) of the Act provides that: “Arrival in and departure from the United Kingdom on a local journey from or to any of the Islands (that is to say, the Channel Islands and Isle of Man) or the Republic of Ireland shall not be subject to [immigration/passport] control under this Act…” Link: http://www.legislation.gov.uk/ukpga/1971/77/section/1
For example, In April 2018, Northern Ireland Office Minister Ian Duncan told the UK Parliament that “… There can be no racial profiling at a border, whether it be routine, quixotic or even accidental … That cannot be the policy or the direction … There will be no checks whatever for journeys across the land border between Ireland and Northern Ireland, nor between Northern Ireland and Great Britain.”
Section 11 of the Immigration Act 2004 is the statutory basis for passport control for those arriving into the Republic of Ireland, containing duties both to carry passports and provide them on request to an immigration officer. However, subsection 11(4) explicitly excludes journeys into the State over the land border (or elsewhere in the CTA) from both of these duties. An exemption is then made to this for ‘non nationals’ defined in the amended 2004 Act as persons who are neither Irish citizens nor persons exercising EU free movement rights.
This at present includes British citizens, who remain EU citizens until at least the 31 October 2019 (after this date, due to Brexit, British citizens may be required by law to carry and produce their passports).
More information here: https://www.equalityni.org/Employers-Service-Providers/Public-Authorities/Section75/Section-75/Screening
This correspondence revealed that no equality screening, consultation or EQIA was undertaken or is planned in relation to the policy.
See the statement given by Translink in this article: https://www.belfasttelegraph.co.uk/news/brexit/carry-your-passport-says-man-quizzed-on-belfast-to-dublin-bus-38093657.html.
The Equality Scheme is available here: https://trn-prd-cdn-01.azureedge.net/mediacontainer/medialibraries/translink/publications-and-documents/nithc/reports/nithc-equality-scheme-(february-2013).pdf. See page 29-30 for the complaints procedure.
An excerpt from this correspondence reads, “Given the increasing diversity of the Irish population, it is not possible to tell who is an Irish, British or other EU citizen by simply looking at people and making a decision based on their appearance. There is therefore no manner in which such checks, and concurrent decisions on who to examine, who is required to carry or furnish a passport or who to detain, can be undertaken without engaging in racial profiling, thereby rendering such checks by their nature discriminatory … It seems that the hard border already exists for those who are targeted due to factors such as their skin colour or accent … It is contrary to the obligations of An Garda Siochana under applicable human rights law and the public sector duty under S.42 of the Irish Human Rights and Equality Commission Act to engage in discriminatory practices. Targeting Irish or British citizens because they are members of ethnic minorities for passport checks would in our view constitute a discriminatory practice. In this context, we call on the Government and on the Garda Commissioner to fully examine whether such practices are taking place and, if they are, require the GNIB to end such practices immediately.”

Please direct media enquiries to Robyn Scott, Communications & Equality Coalition Coordinator

Email – robyn@caj.org.uk

Mob – 075 1994 1203

Tel – 028 9031 6000

CAJ Immigration Project Coordinator, Úna Boyd, is available for interview.

Notes to editors

The Committee on the Administration of Justice (CAJ) is an independent, non-governmental human rights organisation, which works to ensure that the administration of justice in Northern Ireland is compatible with the highest international human rights standards.
See www.caj.org.uk for further information on CAJ and its work.

A Renaissance of the Peace Process? What kind of society do we need?

When: 9.30am to 4.30pm, Friday 27 September 2019

Where: Canada Room, Queen’s University Belfast

To register click here

A working conference organised by CAJ in collaboration with the Irish Council for Civil Liberties (ICCL), QUB Human Rights Centre, and Senator George J. Mitchell Institute for Global Peace, Security and Justice.

The reality of Northern Ireland life for the past two decades is that the peace settlement arrived at in the 1998 Belfast / Good Friday Agreement and reinforced by subsequent pacts has delivered relative peace despite being imperfectly implemented. However, the Brexit process so far has undermined some of the basic assumptions of this agreement and far more serious damage will be done if the UK leaves the EU, especially if there is ‘no deal’.

In any event, we are heading into a time of political turbulence and perhaps confrontation. Soon, we will have a new Prime Minister. A little further on, we may have a general election, a new referendum, or just continuing political guerrilla warfare in a febrile climate of uncertainty. To add to that, Brexit has led to a new focus on the possibility of a united Ireland.

It is urgently necessary for civil society, and particularly human rights activists, to develop a common perspective on how we move forward in these dangerous times. As a working concept, some of us from within the sector have developed the idea of a ‘Renaissance of the Peace Process’. This means a rebirth of the principles within the peace settlement, going back to basics and implementing what was neglected, while also adapting and developing solutions for the new challenges coming down the road. We need to make people feel safe and secure in their identities and ability to access protection of their rights.

A Good Friday referendum poster from 1998

This cannot be a project restricted to Northern Ireland alone. The futures of North and South are fundamentally interconnected and so, just like with the 1998 agreement, solutions must have an all-island perspective. This working conference is designed to discuss the overall concept of a Renaissance of the Peace Process and to elaborate on the policies and actions necessary moving forward. It is organised with the intention to gather views predominantly from the North, but will also welcome input from the South, and we hope will be a good starting point for further discussions.

There will be three main panels during the conference:

Implementing the peace agreements – Looking at the Bill and Charter of Rights, a rights based return to power sharing, policing, and dealing with the past.

A rights based society after Brexit – Examining immigration, citizenship, rights across the island, and the prospect of a broad based equality campaign.

Rights and constitutional change – Dealing with the Good Friday Agreement and rights in a constitutional debate, the necessary development of rights protection in the South, and prospective guarantees for Unionists in a United Ireland.

There will be Q&A at each panel but the final session will be an opportunity for open discussion on the way forward by all present.

Among confirmed speakers and panel chairs are: Doireann Ansbro, Irish Council for Civil Liberties (ICCL); Eilis Barry, Free Legal Advice Centres (FLAC); Una Boyd, Committee of the Administration of Justice (CAJ); Colin Harvey, Queen’s University Belfast; Kieran McEvoy, Queen’s University Belfast; Susan McKay, Journalist & Broadcaster; Paul O’Connor, Pat Finucane Centre; Dawn Purvis, Activist; Peter Shirlow, University of Liverpool; and Anne Smith, Ulster University.

A full agenda will follow soon. If you have any questions about this event, please direct them to the CAJ team on 028 9031 6000 or events@caj.org.uk.

Please register via Eventbrite. Go to bit.ly/renaissance-conference-19.

We cannot continue work like this without your support. Please consider joining ICCL.

ICCL welcomes Finucane ruling, calls for public inquiry

Dublin, 27 February 2019

The Irish Council for Civil Liberties (ICCL) has welcomed this morning’s UK Supreme Court decision, which found that there has been no effective investigation into the murder of Pat Finucane. We join the Finucane family in calling for a full and public inquiry, in order to vindicate their rights to truth and justice.

ICCL director Liam Herrrick said:

“The collusion of state actors in the assassination of a lawyer is a serious threat to justice and the entire democratic system and remains so as long as a proper investigation remains pending.

Pat Finucane’s family have the right to have a full and detailed investigation into his murder, and to know the extent of State collusion and what individual security officers were involved in that murder. In keeping with our long standing position, we are calling on the British government to fulfill its obligations to the family, and to the wider public, through a full and public inquiry.”

An effective investigation is required by Article 2 of the European Convention on Human Rights. The Supreme Court today said that, thus far, this requirement had not been met and that it would be up to the British government to decide “what form of investigation” is required into the assassination of Mr. Finucane.

A previous inquiry found that “agents of the state were involved in carrying out serious violation of human rights up to and including murder”. The Supreme Court said today that, because no individual suspects have been identified or held accountable, Article 2 requirements have not been met.

The Court’s Declaration underlines the need for a more comprehensive approach to transitional justice issues in Northern Ireland. There are a number of other cases in which the rights of victims and their families to truth, justice, reparations and guarantees of non-recurrence have not been met. A rights-compliant approach to transitional justice in Northern Ireland is long overdue and necessary.

Throughout the peace process ICCL and our colleagues in Northern Ireland have consistently argued that the vindication of human rights is an essential foundation for peace on this island. We continue to call for the full and equal respect of all rights for everyone on the island of Ireland, particularly in the context of the potential impact of Brexit.

Letter to Irish Times: Rights and equality challenges of Brexit

Sir, – As organisations and academics working for the protection and advancement of human rights in Northern Ireland and Ireland, there is much to welcome in the draft withdrawal agreement protocol published by the European Commission last week, which translates the political agreement from December 2017 between the UK and the EU into legal form.

The recognition that the Belfast Agreement must be protected “in all its parts” and the explicit reference to the human rights and equality provisions of the agreement are significant grounding principles. The draft protocol also states that North-South cooperation and the guarantee to avoid a hard border are “overarching requirements” for any future arrangements.

“It is now essential that guarantees achieved to date in relation to human rights and the position of Northern Ireland are clarified. Outstanding difficult issues must now be confronted and apparent contradictions resolved.”

At the same time, the contradictions presented by the competing objectives of the parties to the Brexit process are becoming increasingly apparent. It is now essential that guarantees achieved to date in relation to human rights and the position of Northern Ireland are clarified. Outstanding difficult issues must now be confronted and apparent contradictions resolved.

We welcome the restated commitment in the draft protocol to no diminution of rights in Northern Ireland and the explicit reference to protections against discrimination as protected by EU law, which must clearly include the EU Charter of Fundamental Rights and all EU-derived legislation that currently protects human rights in Northern Ireland. We also need greater clarity about the manner of retention of those specific rights and how they will be enforced post-Brexit.

As we move into a more technical phase of the process, it is crucial that principles of human rights and equality inform all the emerging processes, standards and institutions. This applies to any newly formulated arrangements for the Common Travel Area and freedom of movement across these islands.

These principles must also apply to the economic and social rights of citizens to access services.

The stated purpose of the draft protocol is to create a “common regulatory area” of the island of Ireland. The debate has too often focused on regulations applying to goods; we need urgent clarity about what regulatory alignment means in relation to all those living on the island.

The draft protocol raises issues of respect for equal citizenship in Northern Ireland and on the island of Ireland. The draft protocol makes reference to the “rights, opportunities and identity that come with citizenship of the Union for the people of Northern Ireland who choose to assert their right to Irish citizenship”.

“These rights should not be conditional upon a requirement to declare Irish citizenship, in line with the guarantees of equality under the Belfast Agreement.”

We believe in the equal rights of all the people of Northern Ireland, and we believe that the rights currently available to all the people of Northern Ireland as EU citizens should continue to be available to them under any new agreement. These rights should not be conditional upon a requirement to declare Irish citizenship, in line with the guarantees of equality under the Belfast Agreement.

In the context of ensuring that human rights continue to be universal in both principle and practice this may prove to be divisive and unhelpful.

It must be recalled that the protocol to the draft agreement is largely concerned with setting out the details of a “backstop” scenario – the situation that would prevail if no agreement is reached between the parties.

As a starting point, or baseline position, we must ensure that rights and equality remain at the centre of any alternative agreement that might now follow. There remains a real risk that human rights and equality will be airbrushed out of this process.

Finally, we must plan for the complicated future that lies ahead. We must take this opportunity to strengthen the protection and promotion of human rights and equality on this island.

This is the moment to renew our focus on a bill of rights for Northern Ireland and a charter of rights for the island as ways to mitigate the messy rights and equality challenges that may inevitably emerge as a direct consequence of Brexit.

We must remember that human rights were given a central place in the peace process and the Belfast Agreement of April 1998 precisely so that the all those who live in Northern Ireland and on the island of Ireland could move beyond historic divisions and build a future based on shared values. This powerful idea is even more compelling in our present circumstances. – Yours, etc,

BRIAN GORMALLY,
Director, Committee on the Administration of Justice

LIAM HERRICK,
Executive Director, Irish Council for Civil Liberties

EILIS BARRY,
Chief Executive, The Free Legal Advice Centres

KEVIN HANRATTY,
Director, Human Rights Consortium

PADDY KELLY,
Director, Children’s Law Centre

TANYA WARD,
Director, Children’s Rights Alliance

MICHAEL FARRELL,
Solicitor

Dr SUZANNE EGAN,
Assistant Professor, Sutherland School of Law,
Director, UCD Centre for Human Rights

COLIN HARVEY,
Professor of Human Rights Law, Queen’s University Belfast

SHANE KILCOMMINS,
Head of School of Law, University of Limerick

Prof SIOBHÁN MULLALLY,
Established Professor of Human Rights Law and Director of the Irish Centre for Human Rights, NUI Galway

RORY O’CONNELL,
Professor of Human Rights and Constitutional Law, Ulster University.

Open letter to Brexit negotiators from island-wide coalition of NGOs

The ICCL has convened a coalition of organisations in Northern Ireland and the Republic of Ireland to campaign for human rights to be put front and centre in the Brexit negotiations. On 1 December 2017 the coalition sent an open letter to all negotiating parties calling on them to give written guarantees that the final Brexit deal will respect the core principles of rights and equality that underpin the Belfast/Good Friday Agreement.

We are calling for:

No Regression or Diminution of Rights and Equality of Rights Protections

Read the coalition’s open letter

Joint letter to Irish Times on Brexit & Human Rights

Irish Times. Thu, Nov 16, 2017

Sir, – We are entering a critical phase in the Brexit process. At this juncture, it is essential that the Irish Government stands steadfast in its commitment to the protection of human rights in Northern Ireland and across the whole island.

Between now and December 16th, the European Commission and Council (including the Irish Government) will assess whether “sufficient progress” has been made in negotiations with the British government on the key issues of EU citizens’ rights and Northern Ireland. If so, talks will move on to include other issues.

Given the lack of clarity in the British stance, no-one expects these issues to be resolved by December 16th. However, all parties will be weighing up evidence of intent and political will. There will be pressure to find positive news on issues like the Irish Border.

In the drive to find common ground and momentum, we must guard against ignoring deeper issues at stake or undermining the foundations of the Belfast Agreement. The agreement was about more than just bilateral trade-offs between two states. It was about more than ending conflict. It was fundamentally about building a society based on the principles of human rights, equality and dignity.

The society contemplated in the agreement remains a work in progress. Northern Ireland, like the Republic, remains an unequal society with many serious human rights challenges. However, the British government currently proposes to withdraw from the EU Charter of Fundamental Rights as soon as Brexit happens and plans to repeal the Human Rights Act, by which the European Convention on Human Rights is incorporated into UK law once Brexit is complete, thereby jeopardising the future that we have all been working towards.

There need to be assurances that all who live in Northern Ireland will retain the protection of those human rights treaties currently in force.

Northern Irish citizens must be guaranteed the right to hold both British citizenship and Irish and EU citizenship without any difference in treatment.

There must also be assurances that the rights of non-EU citizens living in Northern Ireland will not suffer a diminution.

Over the next month political decisions will be taken that will determine the future of all of us on this island. Business and political voices will be heard, but we must ensure that the voice of the communities who require protection of their human rights are heard loudly as well.

The Irish Council for Civil Liberties, along with other civil society organisations, will provide a platform for those concerned with these human rights issues to make their voices heard, and we would encourage others to do likewise. – Yours, etc,

MICHAEL FARRELL,
Solicitor;

Dr COLIN HARVEY,
Professor of Human Rights Law,
School of Law,
Queen’s University Belfast;

LIAM HERRICK,

Irish Council for Civil Liberties,
Blackhall Place,
Dublin 7.