UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

CCPR A/33/40 (1978)

184. The Committee considered the initial report (CCPR/C/1/Add.17) submitted by the United Kingdom at its 67^th, 69^th and 70^th meetings on 30 and 31 January and 1 February 1978 (CCPR/C/SR.67, 69 and 70).

185. The report was introduced by the representative of the State party who expressed the hope that a supplementary report on his country’s dependent territories and on the Isle of Man, Jersey and Guernsey would soon be completed and submitted to the Committee.

186. He drew attention to the fact that in the United Kingdom, which had no written constitution and where parliament had absolute power to enact and change any law, there was no code of rights but specific sets of reciprocal rights and duties and civil remedies or criminal prohibitions. His country’s ability to ratify the Covenant, which did not in itself have the force of law in the United Kingdom, had rested upon the fact that the rights recognized in the Covenant were already guaranteed by the law, subject to the reservations and derogations which had been made upon signature or ratification. He pointed out that his country recognized no distinction between public law governing the actions of the State and private law governing relations between citizens. In addition, it had no separate code of administrative law, although there were arrangements for dealing with individual grievances against the administration through the office of the Parliamentary Commissioner for Administration and through commissioners who exercised similar functions in relation to the acts of local authorities and the National Health Service.

187. Members of the Committee expressed their appreciation for the comprehensive report submitted by the United Kingdom and for the introductory statement made by its representative.

188. With reference to the right to self-determination recognized in article 1 of the Covenant, the representative of the United Kingdom was asked what was actually being done to speed up the achievement of that right by the United Kingdom’s remaining dependent territories and what the position of his Government would be in a case where a people expressed the desire to exercise that right but did not possess adequate resources to sustain independence. In the light of the statement made upon ratification by the United Kingdom Government indicating to which of its dependent territories all or part of the Covenant would or would not apply, the representative was asked whether that enumeration included all the dependent territories of the United Kingdom; and whether it was possible for the United Kingdom to exclude any such territories from the application of all or part of the Covenant.

189. Referring to article 2, paragraph 1, read together with article 25, subparagraph (a), of the Covenant, one member asked to what extent the constitutional system of the United Kingdom was compatible with those provisions, having regard to the fact that only persons of a certain class or birth could as of right be members of the upper chamber of parliament.

190. In other comments on article 2 of the Covenant, it was noted that, since in the United Kingdom rules concerning human rights derived only from legislation and case law, the rights recognized in the Covenant might not be fully protected in view of the rather fragmentary character of case law. Clarification was requested on the statement in the report that United Kingdom law did not confer a specific right of action in respect of the violations of any basic rights or freedom as such. The representative was asked whether the Covenant had been publicized in the collection of statutes, whether an individual who claimed that his rights had been violated could invoke the provisions of the Covenant in defending himself in court, and what steps could be taken to ensure that the precedents created by the courts were in general in accordance with the spirit of the Covenant.

191. With reference to the statement in the report that the United Kingdom reserved the right to apply to members of the armed forces and persons detained in penal establishments such laws and procedures as might be deemed necessary for the preservation of custodial discipline, the representative was asked whether this reservation was meant to derogate also from article 7 of the Covenant.

192. With reference to articles 3 and 23 of the Covenant, information was requested on the situation in respect of equal rights of men and women; on whether existing legislation provided for complete reciprocity in the obligations of spouses and on the rights enjoyed by the foreign husband of a United Kingdom citizen as compared to those of the foreign wife of a United Kingdom citizen.

193. Some members requested clarification on the comments in the report concerning article 4 of the Covenant and, particularly, on the territorial application of the emergency measures, since the reference was not to Northern Ireland but to Northern Irish affairs; on the juridical considerations that had influenced the decision to make derogations under that article, and on whether the United Kingdom was considering the cancellation of those measures.

194. With reference to the comments in the report on article 7 of the Covenant, some members asked whether corporal punishment, particularly in public schools, was lawful or possible and, if it was, whether there were any restrictions on the use of force by teachers against pupils and whether such punishment was not at variance with article 24, paragraph 1, of the Covenant. In connection with other comments on the same article, the representative was asked whether English law provided that a person could not be subjected to medical or scientific experiments without his consent; whether the police code of conduct applied to military personnel who used force to quell disorders and whether there were any limitations on their activities in that regard; and how effective in practice was a police complaints tribunal which was run by the police itself.

195. In connection with article 8 of the Covenant, more information was sought on the statement in the report that “in cases of breach of contract the courts will not generally order specific performance” and whether there had, in fact, been cases in which the courts had ordered such performance, as well as on the practice which made it possible to require a convicted person to perform unpaid work for a specified period.

196. In comments on article 9 of the Covenant one member asked, with reference to a quotation in the report from the Magna Carta, whether United Kingdom law still provided for a system by which a person could be judged by his peers. Clarification was requested on the statement in the report that “in general, an arrested person must be informed of the true ground of his arrest”, as well as on the cases in which a person could be taken into custody without a warrant. As regards the system of bail applied in the United Kingdom, the representative was asked whether a system which made the release of a person awaiting trial dependent upon the amount of money to which he had access might no be in contradiction with articles 14 and 26 of the Covenant.

197. A number of other questions were asked: was the remedy of habeas corpus in force in England, Scotland, Wales and Northern Ireland? Did a court when considering a writ of habeas corpus, examine the lawfulness of detention in every respect? In the case of detentions made under regulations stemming from the Mental Health Act, was the discretion of the Home Office subject to review by the court?

198. In respect of article 10 of the Covenant, information was requested on the rules which regulated the treatment of prisoners, in general, and solitary confinement, in particular, and on any specific changes that may have been introduced to ensure that inhuman interrogation techniques were no longer applied in Northern Ireland. Members also asked whether penalties under the Code of Discipline included corporal punishment, whether the right to counsel and the “rules of natural justice” were secured in cases where prisoners were punished for offences against discipline, and whether the procedure for punishment of prisoners for offences against discipline by the Governor of the Board of Visitors applied in cases of criminal offences committed in prison and, if it did, whether that was in conformity with article 14, paragraph 1, of the Covenant. One member expressed surprise that, according to the report, a 10-year-old child could be sentenced to detention.

199. With reference to article 12 of the Covenant and to the reservations made thereto by the United Kingdom, information was requested on any exceptions to the rights inscribed in that article in addition to those included in the reservations, and on whether there was any possibility of appeal against the application of the “immigration controls” in respect of persons who did not have the right of abode in the United Kingdom. Concern was expressed by some members in respect of some inhabitants of ex-dependent territories who still held British passports but did not seem to have absolute right of entry into the United Kingdom. The reservation to that effect was thought to be so sweeping that there was some doubt as to whether it might not be extended, as far as immigration was concerned, to the prohibition of discrimination as set out in articles 2 and 26 of the Covenant. Information was requested on the extent to which the Covenant’s provisions concerning the prohibition of racial discrimination were compiled with in the framework of the United Kingdom immigration policy.

200. As regards article 13 of the Covenant, clarification was sought on the meaning of the terms “public good” and “reasons of a political nature” used in the report in connection with the rules governing deportation of aliens from the United Kingdom. The representative of the United Kingdom was asked whether due account was taken of the interests of the person concerned before an order of expulsion was issued; and why it would be necessary to deport, against their wishes, the wife and children of a person who had already been deported.

201. In relation to article 14, information was requested on the procedure followed in the appointment of judges and on the measures taken to ensure the independence of judges. The following questions were asked: In what cases were trials not held in public? At what stage did the right of the detainee to counsel arise and what remedies were available in cases where a person who had been arrested was denied that right? Would an accused person be deprived of the possibility of calling the witnesses necessary for his effective defence if he did not possess sufficient financial resources? Commenting on the procedure for ex gratia payments referred to in the report under article 14, paragraph 6, some members, while requesting more information on the matter, expressed doubts as to whether such payments were enforceable and in conformity with the provisions of the Covenant.

202. With reference to article 15 of the Covenant, some members requested additional information on the competence of Parliament to enact ex post facto criminal legislation and on whether Parliament would be prepared to accept advice from the Government concerning the compatibility of such legislation with the Covenant.

203. As regards article 17 of the Covenant, the representative was asked whether the existing law provided for electronic surveillance and for searches without a warrant.

204. In respect of article 18, information was requested on the laws which provided for restrictions on the freedom of religion and on the remedies available to individuals who claimed that their freedom of religion had been violated.

205. In connection with articles 19 and 20, members asked whether the Act of 1819 concerning blasphemy and sedition was still in force; what was meant by “public feeling” in the statement that radio and television programmes should not contain any matter “offensive to public feeling”, and whether racist propaganda was prohibited.

206. It was noted that the Race Relations Act was enacted to ensure that the part of the population which was of immigrant origin was not discriminated against. The following questions were asked: would a person of such origin who was addressed in derogatory terms and subjected to degrading treatment receive the kind of protection to which citizens were entitled? How many cases reported as breaches of that Act were in fact prosecuted? If the legal provisions governing race relations were not effective, would the Government reconsider them with a view to improving the situation?

207. As regards the freedom of association provided for in article 22 of the Covenant, members asked whether a person was under any obligation to join a given association, whether a trade union could be set up in each enterprise and whether the management of an enterprise could object to its establishment and hamper its activities.

208. In connection with the right of every child to acquire a nationality, provided for in article 24 of the Covenant, it was noted that the citizenship of the father was a determining factor if the child was born aborad. Information was requested on the role played by the citizenship of the mother in such a case. Further details were sought on the protection of unborn children under United Kingdom law.

209. With reference to article 25, it was asked whether members of the armed forces were entitled to take part in public life by voting and being elected to public office. Clarification was requested on the statement in the report that the Race Relations Act permitted the application of the nationality requirement contained in Civil Service Departmental Regulations.

210. In relation to article 26 of the Covenant, it was noted that protection of the law did not suffice to prevent discrimination in public life. More information was requested on the legislation of 1976 relating to the private sector, the reasons for its enactment and the results achieved through the application of its provisions. Referring to a statement in the report that “no person could be deprived of the equal protection of the law except by express legislation of Parliament”, some members asked whether any such legislation had ever been enacted.

211. Further details were requested on the steps being taken to enable minorities to develop their own culture.

212. The representative of the United Kingdom replied to those of the observations and questions summarized in the preceding paragraphs on which he could comment, at least in part, subject to the possibility of amplifying or modifying those comments later when the questions and observations made by members of the Committee had been fully studied in the United Kingdom. He stated that the report did not refer to any dependent territories and that a complete list of the territories, which would be covered in the supplementary report, would be supplied soon. The Covenant was applicable to the territories mentioned in his country’s declarations and reservations and to all others in respect of which the Covenant had been ratified. There was no reason why the application of particular provisions of the Covenant to particular territories could not be the subject of a reservation. The dependent territories were at various stages of constitutional development. Territories which desired independence but had been unable to meet their development needs received grants from his Government.

213. Replying to questions under article 2 of the Covenant, the representative of the reporting State pointed out that it was by a combination of existing law and any necessary amendments that the United Kingdom gave effect to its treaty obligations. An individual could therefore look to the law for the legal rules which protected his rights, and there was thus no need for a treaty as such to be applied as part of United Kingdom law. The text of the Covenant had been officially published in the United Kingdom but no claims in court could be based on its provisions. Referring to questions concerning reservations entered into by his country with regard to article 2 of the Covenant, he said that existing system of military justice contained considerable safeguards to protect the rights of individual servicemen and there should be no conflict, other than on points of detail, between the relevant provisions of the Covenant and the Code of Discipline; the same applied to the Code of Prison Discipline and both codes were subject to periodic review by Parliament.

214. In connection with article 4 of the Covenant, he stated that, because of the situation in Northern Ireland, which threatened the life of the nation, the United Kingdom availed itself of the right of derogation provided for in that article. He explained in detail the reasons why his Government felt it necessary to reserve the right to derogate from the provisions of articles 9, 10, 12, 17, 19, 21 and 22 of the Covenant.

215. As regards article 7 of the Covenant, he said that no one could be subjected to medical or scientific experiments without his consent. The use of physical correction of children, whether in public or private schools, was not yet illegal in his country, though a teacher (or a parent) could be sued on behalf of the child if excessive force was used. Replying to a question concerning the Police Complaints Board, he said that the Board, which was in every sense independent of the police, was established to make it possible for a complaint against the police to appeal to a completely independent body.

216. Referring to the community service order mentioned in connection with article 8 of the Covenant, he pointed out that, under such an order, a person who had committed an offence could be required, if he so agreed, to give a certain number of hours of unpaid work to the community. That method was not part of the prison regime, and could not be applied to persons in custody.

217. Replying to questions under article 9 of the Covenant, the representative pointed out that the expression “lawful judgement of his peers” meant a judgement by the equals of the accused person and that it was now implemented by the system of trial by jury which was still applicable in the more serious cases. Minor cases which represented the majority of criminal charges were dealt with by law, unpaid magistrates drawn from all parts of society. As regards arrests without a warrant, he indicated that police officers could resort to them only in respect of serious offences, described by the law as “arrestable” offences, and certain other offences expressly specified in particular statutes. The bail system was meant to guarantee that the defendant would appear and the question of payment only arose if he failed to do so or if he was likely to leave the country. The financial means of those concerned were taken into account in fixing the amount. With regard to applications for a writ of habeas corpus, the person having recourse to such procedure relied on the fact that being kept in custody was illegal except for specified reasons, the existence or absence of which the court would have to consider. He stressed that the habeas corpus procedure or its equivalent was available in Northern Ireland as in any other part of the United Kingdom As for appeals against detention in a psychiatric hospital, the usual procedure was to bring the matter before tribunals specially responsible for cases of mental health which could examine not merely the legality but also the medical desirability of the detention.

218. Replying to questions under article 10 of the Covenant, he said that the reference in the report was not to cellular confinement which could be authorized as a disciplinary measure for a limited period, but to the case where a prisoner could request to be removed from association with other prisoners for his own convenience, and it was that authority which could be given for one month and could be renewed. Children under 14 were placed not in prisons, but in community homes which were more like schools; later they might be moved to establishments within the prison system catering specifically for adolescents. In the case of children stricto sensu it was applied only for serious crimes, such as murder, when some form of detention was necessary in the interest of public safety to prevent a further offence.

219. In relation to the “immigration controls” practised in the United Kingdom in respect of some inhabitants of ex-dependent territories who still held British passports the representative gave a historical background to the status of such persons and to the rules governing their entry into the United Kingdom. He stated that article 12, paragraph 4, of the Covenant dealt with arbitrary acts and that the control in force was not arbitrary but governed by statute. To prevent misunderstanding, however, his country had, on ratifying the Covenant, entered a reservation on that article.

220. Referring to comments under article 13 of the Covenant, he stressed that the court could order deportation only in respect of offences punishable with imprisonment. A person, however, was liable to deportation for political reasons if he had a pernicious influence. The fact that the deportation of an individual brought about the deportation of his wife and children was governed by the concern to prevent the separation of families.

221. In answer to questions put to him under article 14 of the Covenant, the representative said that a person in police custody was allowed to telephone his solicitor or friends provided that no hindrance was reasonably likely to be caused to the processes of investigation or the administration of justice; and that even if the trial was held in camera, the sentence had to be pronounced in public, except in the case of juveniles, when only the press was allowed to be present. With regard to persons who had been unjustly sentenced and subsequently exonerated, the compensation from public funds was made ex gratia and not as of right. However, it was considered that arrangements for assessing compensation were such that United Kingdom practice did in substance give effect to the spirit of the Covenant.

222. Responding to questions under article 17 of the Covenant, he said that no law had yet been enacted prohibiting the use of electronic equipment for the surveillance of the private lives of persons.

223. With regard to questions under articles 19 and 20 of the Covenant, the representative pointed out that control was exercised over radio and television programmes containing matter “offensive to public feeling”, such as broadcasts of an obscene nature. In that connection, he said that the use of abusive language was not punishable by law unless it involved incitement to racial hatred, defamatory remarks or insults likely to cause a breach of the peace. A decision could be made only on the facts of a particular case.

224. Replying to questions under article 3, 23 and 24 of the Covenant, he pointed out that a woman who had married a British subject could acquire the nationality of her husband on application, but that men who had married women of British nationality could acquire British nationality only by registration or naturalization. On the other hand, the mother, unlike the father, could not transmit her nationality to her children, that approach being motivated by a concern to avoid too many cases of dual nationality.

225. In response to a question under article 26 of the Covenant, he pointed out that there was no recent example of an Act of Parliament expressly amending the constitutional principle of equal protection of the law. As regards the rights of minorities provided for in article 27, he said that steps had been taken to overcome problems arising from the recent arrival in his country of minorities with different cultures and languages, by increasing the budget of local authorities to enable them to increase the number of teachers in schools and by providing assistance to voluntary organizations.

226. The representative of the United Kingdom finally reiterated his earlier statement that a supplementary report on dependent territories would be transmitted to the Committee which would also receive further information on the questions raised during the discussion.

CCPR A/34/40 (1979)

228. At its 147^th, 148^th and 149^th meetings, held on 25 and 26 April 1979 (CCPR/C/SR.147, 148 and 149), the Committee continued its consideration of the initial report of the United Kingdom (CCPR/C/1/Add.17) 9/ and the supplementary report containing additional information (CCPR/C/1/Add.35) submitted in reply to the questions which had been put by the Committee during the consideration of the initial report at the 69^th and 70^th meetings. The Committee also considered the third part of the initial report concerning the Channel Islands and the Isle of Man reproduced in document CCPR/C/1/Add.39.

229. Several members made comments and put questions concerning the implementation of the Covenant in the United Kingdom, particularly in respect of equality of rights and the commitment undertaken by States parties in accordance with article 2 of the Covenant to respect and to ensure to all individuals in their territories the rights recognized in the Covenant without distinction of any kind. Noting that there was a category of citizens in the United Kingdom who by virtue of their birth had an absolute right to become members of the House of Lords and that, in connection with nominations to certain posts, there were restrictions based on the nationality not only of the candidates but also parents of candidates, members asked how could that be reconciled with the provisions of article 25 of the Covenant which stipulated that citizens were entitled on equal terms to have access to all political bodies and to participate in public affairs without any distinction based, inter alia, on birth. In this connection one member noted that although there was no statute law in the matter, Governments in the United Kingdom had always been formed on a party basis whereby the political party winning the elections formed the Government from its members and thus the possibility of participating in public affairs was predicted on membership in either the Conservative or Labour Parties which did not seem to have major differences over the political and economic foundations of the system.

230. The question was repeatedly asked as to whether there were court decisions or specific laws which expressly provided against discrimination of any sort and for the absolute equality of rights enunciated in articles 2 and 3 of the Covenant, as in the absence of judicial decisions or legal provisions, it would be difficult for the Committee to ascertain the extent to which the provisions of those articles were being applied in the United Kingdom. In this connection, it was asked whether the United Kingdom Government contemplated a change in the existing rules regarding transmission of nationality by either parent. Stressing the relationship of his question to the independence of the judiciary provided for in article 14, one member asked whether a large part of the population was not excluded in practice by such factors as the costly educational process required to gain the ability to become a judge and whether women could become judges, particularly in the higher courts. With

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    9/ The initial report by the United Kingdom was considered by the Committee at its 67^th, 69^th and 70^th meetings, on 30 and 31 January and 1 February 1978 respectively, see CCPR/C/SR.67, 69 and 70 and Official Records of the General Assembly, Thirty-third Session, Supplement No. 40 (A/33/40), paras. 184-226.

reference to articles 2 and 25 of the Covenant, it was also noted that members of the armed forces could not participate in the conduct of political affairs and the question was asked whether there were others who could not do so because of their official status.

231. The representative of the United Kingdom explained the limited role which the House of Lords played in the constitutional structure of the United Kingdom. It had, he said, for centuries been an inherent part of the British constitutional structure. The real avenue for political activity was the House of Commons and not the House of Lords. He emphasized that, when the United Kingdom had considered the possibility of ratifying the Covenant, the legislation and British constitutional organization had been studied closely and the conclusion had been reached that the situation was in keeping with the provisions of article 25 of the Covenant. He pointed out that in recent years the hereditary elements of the House of Lords had been diluted by the nomination of life peers designated by the crown on the recommendation of the Government. In reality, the existence of the House of Lords in no way affected the right of citizens to take part in the conduct of public affairs without discrimination of any kind. With regard to the question of access to public service, he stated that the requirements established in the nationality rule imposed no distinction based on birth or nationality, but were designed to ensure that those who became involved in public administration, in addition to being citizens, should have direct ties or reasonable links with the country. As regards the party system on which governments were based in the United Kingdom, he pointed out that in this country everyone enjoyed the freedom to form other political parties, such as the Communist Party, and that all parties had one common characteristic, because they performed their activities within the democratic system, but the policies they advocated were fundamentally different. In an election in which all parties were free to participate and use the mass media, it was evident that if a party did not win it was because the electorate did not wish to vote for it.

232. As to the question of discrimination he indicated that if a person considered that his rights set forth in article 25 of the Covenant had been violated he could invoke laws which specifically referred to discrimination on grounds of race, sex or marital status or could challenge the authority of the person who prevented him from exercising his right. Replying to other questions concerning equality of rights, he indicated that, although a small change had been made by administrative action affecting the Home Secretary’s discretion, no legislation providing for equal transmission of nationality by matrilineal succession in the United Kingdom had yet been introduced. He said that most criminal cases were judge by lay persons but the judges of the higher courts were selected from the Bar. To become a member of the Bar, it was only necessary to pass the required examination. Morever, access to universities was open to all and there was a wide system of State scholarships. He also stated that there were some women high-court judges; and that in addition to members of the armed forces, there was a limitation on participation in the conduct of political affairs on the part of members of the civil service or the diplomatic service. The criterion applied affected the fact that members of both services offered their services to the Government and not to the political party in power, and that they must therefore be able to act with absolute impartiality.

233. The fact that the United Kingdom did not have a written Constitution and that the Covenant was not part of its internal law continued to give rise to various comments and questions by members of the Committee, especially since the reports submitted were found not to refer to the legislative texts and judicial decisions which the Government claimed reflected the rights and freedoms provided for in the Covenant. Some members thought it was not enough simply to maintain that the State proceeded on the assumption that its legal system was compatible with the Covenant. Members asked, therefore, the extent to which the Committee could determine whether the laws and court decisions were or were not compatible with the provisions of the Covenant and how an individual could enjoy the rights guaranteed by the Covenant if its provisions were not made part of the law of the land and could not be invoked in the courts. Given the complete independence enjoyed by the courts of the United Kingdom, members asked what guarantees there were for the application by the courts of the provisions of the Covenant and, if a court decision was reached in violation of those provisions, what direct and specific protection was available to an individual who was deprived of a right laid down in an international instrument ratified by his Government. Noting that in accordance with the principle of parliamentary supremacy the British Parliament could make any law and no court could question its action, one member asked how an effective remedy could be provided in the absence of a bill of rights, if a citizen who might wish to raise a question regarding a law would not be able to get a court to hold a legislative act invalid.

234. Replying to these comments and questions, the representative stated that while there was little or no written law in respect of constitutional organization, there were indeed written laws covering all the remaining areas and those laws had to be applied by the courts. As far as the implementation of the Covenant was concerned, he did not share the opinion that, under article 2, paragraph 2 of the Covenant, a State party had expressly to make the Covenant part of its internal law. What mattered was the treatment that people received and the way in which the law worked in practice. Anyone in the United Kingdom could consult the laws, observe the operation of the courts and ascertain in person or by reading the newspapers whether the rights and freedoms laid down in the Covenant were being respected. In this connection, he stated that the Parliament would enact a law to annul any judgement that may be rendered by a court in violation of the provisions of the Covenant. He contended that there was no way, short of introducing radical changes in the Constitution, in which a bill of rights could be enacted in such a way as to make those rights directly actionable. Moreover, there was no way of judging the constitutionality of an act of Parliament. In the last resort, the operation of the United Kingdom’s Constitution depended on the fact that, to a great extent, it was unwritten and on the deep appreciation of their rights by the citizenry as a whole.

235. Members of the Committee expressed concern at the continued derogation of the United Kingdom under article 4, from articles 9, 10, 12, 17, 21 and 22 of the Covenant and requested clarification as to the reasons for and extent of such derogations, bearing in mind the conditions laid down in article 4. It was felt that it was the duty of the Committee to ascertain whether there was justification for each and every derogation under that article. They noted that the United Kingdom did not derogate from article 14 of the Covenant concerning the right to a fair trial, and that no derogation from article 7, prohibiting torture or degrading treatment, may be made under article 4. Nevertheless, according to one member, it was found by the Bennett Committee on Police Interrogation Procedure in Northern Ireland that in many cases people under interrogation had suffered injuries that were not self-inflicted and that, in an unusually large number of cases, convictions had been obtained as a result of confessions where it was not possible to have a detailed record of the whole process of interrogation. It was asked whether, when the Bennett Committee had been appointed, its attention had been directed to the obligations of the United Kingdom under the Covenant and what was meant by the statement in the supplementary report that “obtaining evidence improperly [was] not in itself a criminal offence”, but simply an administrative breach sanctioned by disciplinary action, since the word improper might in this context encompass the use of torture. In this connexion, questions were asked as to what provisions existed to ensure that immigrants were not subject to indignities or to practices endangering their health and what criteria were used in the United Kingdom to determine mental illness for persons in custody. As regards everyone’s right to liberty and security of person, questions were asked on whether there were safeguards regarding the length of time detainees could be held for questioning; to what extent habeas corpus or equivalent remedies could be effective if, as was the case of Northern Ireland, persons could be arrested by the police without a warrant on the mere suspicion of being terrorists and detained for up to 72 hours; to what extent did the Police Complaints Board investigate complaints made by a detainee regarding injuries; and what was the proportion of cases taken to the Director of Public Prosecutions on which affirmative action, in the form of actual prosecution, had been taken. It was also asked, in relation to article 20 of the Covenant, whether a refusal on the part of the Attorney-General to give his consent for a prosecution on incitement to racial hatred had to be substantiated by fact and by law.

236. Replying to these comments and questions, the representative stated that there existed in his country a public emergency which threatened the life of the nation and resulted from an extraordinary attack aimed at bringing about forcible change in the relationship of Northern Ireland with the United Kingdom Government. He stated that the Bennett Committee, while acknowledging that it was sometimes necessary and lawfully permissible for police officers to restrain prisoners in order to defend themselves, had made a number of recommendations for improving the control and supervision of the interrogation process and that the Government accepted its broad conclusions and endorsed its approach. He pointed out that the statement in the report with regard to obtaining evidence improperly did not mean that the use of torture or assault for this purpose was not a criminal offence; that there were numerous ways of obtaining evidence improperly and that merely to do so was a breach of police orders rather than a criminal offence. As to the question of treatment of immigrants, he explained the health examination procedure for immigrants and stated that immigration officers were expressly instructed to carry out their duties without regard to the race, colour or religion of people seeking to enter the United Kingdom. He also explained the specific regulation of admission to mental hospitals, including the provision for a review of the condition of patients by independent mental health tribunals, and pointed to the various powers of the criminal courts in relation to accused persons deemed to be suffering from mental illness. As to the question of habeas corpus and the power to arrest without a warrant, he said that it would be an answer to a writ of habeas corpus that the defendant had exercised a statutory power but that the main objective of such a writ would be to inhibit the purported use of powers which did not exist; that the function of the Police Complaints Board was not to investigate complaints at the first instance, but rather to monitor the investigation of complaints; that whenever there was suspicion or evidence that a policeman was guilty of a criminal offence, the Director of Public Prosecutions became responsible for dealing with the matter and that in exercising his functions, the latter was an independent officer, free from political direction, although his conduct came within the over-all responsibility of the Attorney-General, a member of the Government of the day.

237. With reference to freedom of expression and association provided for in articles 19 and 22 of the Covenant, members of the Committee requested further details concerning the procedures under which an individual or organization might complain of unfair treatment or misrepresentation in a broadcast and asked whether the procedures were judicial or administrative; whether the United Kingdom Government did not consider the very existence of a racist organization incompatible with the provisions of the Covenant; and whether trade unions were permitted to operate inside the factory in which their members worked. Referring to the closed-shop system, one member expressed the view that, even if this system could be reconciled with freedom of association, it made the individual dependent on his trade union and subject to abuses that could occur. He inquired as to whether a worker who opposed the illegal actions of a shop steward during a labour dispute would be dismissed from his job and, if so, what was the Government doing to prevent such abuses.

238. In his reply, the representative referred to the different procedures applied so far by the two bodies licensed to transmit public programmes in the United Kingdom concerning individual complaints against their programmes and referred to a recently published paper by his Government whereby a single complaints commission should be established for the entire public broadcasting system. As regards racist organizations, his Government viewed an organization not so much in the light of what it was as of what it did. If such an organization offended the law on racial hatred or discrimination, it would come within the terms of the law. Concerning trade unions, he stated that they did operate inside factories; that his Government did not consider the closed-shop system to be an infringement of the Covenant. The matter had, in fact, come before the European Commission of Human Rights and, if the Commission came to a different conclusion that would have to be taken into consideration or if the Conservative Party came to power, the system might eventually be modified.

239. With reference to the initial report submitted by the United Kingdom concerning the Channel Islands and the Isle of Man (CCPR/C/1/Add.39), the obligation of the United Kingdom under article 1 of the Covenant was of special concern to members of the Committee since it did not seem justifiable to speak of dependence 19 years after the colonial system had collapsed. Questions were asked on how the United Kingdom interpreted the requirement to “promote” the realization of the right to self-determination; why had so much time elapsed without those territories choosing independence; how had the people expressed their desire not to be independent; were there economic or military reasons for the United Kingdom to retain control of those islands, whether the territorial waters and resource margins of the Channel Islands and Isle of Man had been defined; and whether it was the United Kingdom or the Islands themselves that maintained sovereignty over them.

240. As regards article 3 of the Covenant, information was requested on the current status of women in the islands, including the right to vote and to run for election and on the extent to which the laws of the Channel Islands were at variance with the requirements of that article.

241. With reference to article 4 of the Covenant, it was asked whether the emergency powers had been extended to the Island of Jersey as a result of a unilateral decision by the United Kingdom authorities or as a result of the express wishes of the Island concerned.

242. As regards the implementation of the provisions of articles 6, 7, 9, 10, 13, 14 and 17 of the Covenant questions were asked as to what crimes were sanctioned by the death penalty; whether the United Kingdom Government did not consider corporal punishment to be degrading treatment prohibited in accordance with article 7 of the Covenant; whether accused persons were segregated from convicted persons; whether accused juveniles were separated from adults and brought for adjudication as speedily as possible; whether members of the family were deported with the person concerned ;and whether the provisions concerning compensation for persons convicted of criminal offences but later exonerated were in conformity with the letter and spirit of article 14 of the Covenant.

243. In relation to the implementation of the right of peaceful assembly in Jersey, it was asked whether this right was still subject to the provisions of the law promulgated in 1797. As to the right of participation in the conduct of public affairs provided for in article 25 of the Covenant, it was asked whether this right was still governed in Jersey, inter alia, by the provisions of the law promulgated in 1897. With reference to the Isle of Man, information was requested on the manner of election of the Legislative Council and on the statutory exceptions to which eligibility for elections and membership of the House of Keys was subject.

244. In reply to questions under article 1 of the Covenant, the representative of the United Kingdom stated that the Islands had always enjoyed a considerable degree of independence; that the United Kingdom Government was not opposed in principle to a movement towards greater autonomy, provided its own responsibilities were not put at risk; that there was no request from the inhabitants of the Islands for complete independence; and that if there were great political movement for independence, the United Kingdom Government would consider it seriously.

245. With regard to the application of emergency laws in the Channel Islands, he pointed out that for emergencies of a civil nature, the local legislation applied. United Kingdom legislation on terrorism was applied in the Islands in consultation with their authorities.

246. Replying to questions under articles 6, 7, 9, 10, 13, 14 and 17 of the Covenant, he indicated that, whereas Guernsey had abolished the death penalty for murder, Jersey retained it for murder and the Isle of Man retained it for murder, treason and genocide; that corporal punishment still existed in the legislation of the Channel Islands, but, in the light of the findings of the European Court, it is unlikely that the judicial authorities of these Islands would impose such sentences any longer; that the main reason for deporting the family along with the individual concerned was to keep the family together; that his Government considered the practice concerning compensation for persons convicted of criminal offences but later exonerated to be in accord with the spirit of the Covenant and that it would see whether it could not be made to accord more closely with the letter also.

247. Replying to questions under article 22 and 25 of the Covenant, the representative pointed out that the right to peaceful assembly was guaranteed by customary law and that the application of the law promulgated in Jersey in 1797 did not mean that the holding of public assemblies authorized by law and by custom was in any way restricted. The representative gave more details concerning the electoral system as applied in the Channel Islands and the Isle of Man.

CCPR A/34/40 (1979)

Dependent territories

300. The Committee considered the second part 11/ of the initial report submitted by the United Kingdom (CCPR/C/1/Add.37) at its 161^st, 162^nd and 164^th meetings, on 6 and 7 August 1979 (CCPR/C/SR.161, 162 and 164). The report covered all the remaining dependent territories administered by the United Kingdom in respect of which the Covenant has been ratified.

301. In introducing the report the representative stated that document CCPR/C/1/Add.37 contained information prepared by the authorities of 11 different dependent territories for which the United Kingdom was responsible. Since 1945, when the Charter of the United Nations formally acknowledged the principle of self-determination for colonial peoples, successive British governments had given every help and encouragement to dependent territories wishing to become independent. To that end, it was committed to the creation of competent political and economic institutions in its dependencies. At the same time, it had been a consistent part of its policy that no territory should be forced into independence against the will of its population. That policy meant that, subject to the overriding responsibility for good Government, the United Kingdom Government did not seek to substitute its own judgement or instructions for the will and decisions of local Governments responsible to their own people. The United Kingdom Government considered it proper for the administering power not to interfere, so long as the decision was arrived at by the people of a territory through due democratic process, and as long as it did not offend the basic principles of the Covenant. The guiding principle of the Government of the United Kingdom was that the wishes of the people must be paramount.

302. Each of the territories for which information was provided had its own separate and distinct legal system. While there were common elements there were also many differences of detail and occasionally even of principle, depending on the wishes of the local authorities. The fact that the information in the report had been prepared by the authorities of the dependent territories themselves was consistent with the measures of autonomy which they enjoyed. The varying substance of the report reflected the widely varying circumstances of the territories themselves. Some were small territories where local institutions of Government were still very simple; others were larger territories effectively self-governing, with well developed democratic institutions and with the United Kingdom’s responsibility under the Constitution now confined mainly to defence, security and

_____________

            11/ The first and third parts of the initial report and the supplementary report to the first part which covered the United Kingdom and the Channel Islands and the Isle of Man respectively, were considered by the Committee at its 67^th, 69^th, 70^th, 147^th, 148^th and 149^th meetings (CCPR/C/SR.67, 69, 70, 147, 148, 149). See paras. 228-247 above and Official Records of the General Assembly, Thirty-third Session, Supplement No. 40 (A/33/40), paras. 184-226. The Committee was informed of the text of a note received from the United Kingdom Mission at Geneva to the effect that the Gilbert Islands were to receive their independence on 12 July 1979, and accordingly, from that date the United Kingdom Government would cease to have any responsibility for the Gilbert Islands.

external affairs. He finally pointed out that his delegation did not expect to be able to answer there and then all questions which required a detailed knowledge of the laws and practices of the 11 territories covered by the report. Therefore, as on past occasions, replies to questions which might have to be referred to the territories concerned would be submitted in writing at a later stage.

303. Members of the Committee expressed their appreciation for the comprehensiveness which characterized the report under consideration. Many questions centred on the implementation by the United Kingdom of the right of peoples to self-determination enshrined in article 1 of the Covenant. References were made to the statements in the report to the effect that it was the policy of the United Kingdom to grant independence to any territory which sought it but not to compel any into it and some territories had not expressed a wish for independence. Members asked how could people be compelled into independence; were there people who struggled against independence and if so, where and how. It was stressed that continued dependency was a continued violation of article 1 of the Covenant and of the relevant resolutions of the General Assembly under which the administering powers were duty-bound to take positive steps and effective measures to enable the people of these territories to decide their status and exercise their right to self-determination and to full control over their natural resources. In this respect, it was observed that the United Kingdom interpreted its obligations in a passive manner and did not make any effort to facilitate the exercise of the right of self-determination by the peoples of the territories. A Green paper published in Bermuda in 1977 on the possible advantages and disadvantages of an eventual independence was mentioned as a typical example of that interpretation. Questions were asked on whether the Government consulted regularly and democratically the peoples of the dependent territories concerning their wish to attain independence or otherwise.

304. Referring to statements in the report, members asked which constitutional process had been followed to determine that the population in the Cayman Islands and Pitcairn did not wish any constitutional changes or to ascertain the true wishes in this respect of the peoples of the other dependent territories. More information was requested on the future prospects of Hong Kong and Gibraltar in view of their close links with China and Spain respectively, and of Belize and the Falkland Islands in view of the claims thereto by Guatemala and Argentina respectively. Referring to the British Indian Ocean Territory which he understood to be a new dependent territory created in 1965 and consisting of such islands as Diego Garcia and other parts of the Chagos Archipelago, one member expressed concern at the fate of the people who used to live there and asked whether these people had the right to return to the place of their birth; whether they had received compensation for their property when they were, as he understood, forcibly removed from their islands: and whether there were any actions before the courts in the United Kingdom relating to their rights. With regard to the people of Ocean Island who had been settled elsewhere, apparently against their will, and had initiated action in the United Kingdom for the restoration of their rights, it was asked whether that island formed part of the Gilbert Islands which had recently obtained independence; and whether the inhabitants had been consulted in this regard. Information was also requested on the status of the New Hebrides.

305. Noting that people had the inherent right not only to be aware of the resource margins around their territory but also to have a say in the way those margins were exploited and that because of their geographical characteristics as islands, many dependent territories had important prospects for economic development, one member asked to what extent the interests of these peoples were taken into account by the United Kingdom in international forums such as the United Nations Conference on the Law of the Sea; whether anything was being done to make the people of the dependent territories aware of their rights; and who represented the territories in the event of a conflict between the rights of those people and the right of the United Kingdom with regard to the principles which ought to apply in the delimitation of resource margins.

306. As regards article 2 of the Covenant, it was pointed out by members of the Committee that in all the territories covered in the report the entire administrative and judicial structure depended on the power vested in the Governor of the Territory appointed by the Queen of England; that so long as the colonial structure persisted, the implementation of the Covenant must remain in doubt since it was clear that the peoples of these territories themselves had very little influence; and that the relevant Constitutional Orders did not fully correspond to the conception of the Covenant since they were much narrower in their impact and reflected a specific political model. In this connection, and with reference to a statement in the report concerning the British Virgin Islands, one member stated that it was of the highest importance that fundamental rights be written into the Constitutions of the dependent territories. He considered that it was the responsibility of the United Kingdom under the Covenant to ensure that these rights were given effect in law and not simply left to the discretion of the local legislative authorities because the international obligation lay with the United Kingdom as such and not with those territories. Questions were asked on what measures had been taken to ensure the wide publicity of the text of the Covenant in the dependent territories; and whether the expression “widely respected and protected” used in the report to describe the status of human rights in the Cayman Islands meant that they were not completely respected. Noting that the Covenant did not itself have the force of law in the territories, members asked whether it could nevertheless be involved before the courts and which law prevailed in case of a conflict between the provisions of the Covenant and those of the domestic legislation. In this connection questions were asked as to whether the United Kingdom legislation applied automatically in the non-autonomous territories and what happened in the event of a conflict between local law and United Kingdom law. Referring to the statement in the report that the Cayman Islands were bound by the European Convention on Human Rights, members asked whether the European Convention was also applicable to the other dependent territories.

307. Noting that the Bermuda Constitution Order 1968 appeared to permit discrimination based on sex, that the report on the British Virgin Islands indicated that it was possible for individuals to bring action against officials and that such proceedings were regulated by the Crown-Proceedings Ordinances, members asked whether such actions were possible in all the territories, and if so, whether there were restrictions placed on litigants in terms of time and procedure and whether there were, in those proceedings, restrictions that did not exist in cases brought by one citizen against another.

308. With reference to article 3 of the Covenant, one member noted that the reports on most of the dependent territories were silent on its implementation. It was however also observed that the Bermuda Constitution Order 1968 appeared to permit discrimination based on sex. Information was requested on the steps taken by the United Kingdom to ensure equality between men and women and on the number of women officials in the executive, legislative and judicial bodies of the territories; and the number of women doctors, professors and other professionals. The question was also asked as to whether women leaving or entering the territories were subjected to special restrictions and, if so, whether such control was conducted by the officials concerned on special instructions from the Government. In this connection, it was asked whether any distinction was made between citizens of the United Kingdom and those of the territories.

309. With respect to article 4 of the Covenant, it was noted that most reports of the territories did not make any reference to the implementation of this article. However, article 14 of the Constitution Ordinance 1968 of Bermuda contained provisions for time of war or emergency which seemed to be of a wider scope than those provided for in the Covenant, while article 16 of the Constitution of Gibralter was rather vague in this regard. Questions were asked as to what were the effects of an emergency on fundamental rights and freedoms; whether these provisions had been applied to these two territories; and whether similar provisions existed in the other territories.

310. In respect of article 6 of the Covenant questions were asked on the rate of infant mortality in the territories as compared with the rate in the United Kingdom; and whether there was any prospect of the abolition of the death penalty in the territories. Clarification was requested regarding the length of what was described as detention “during Her Majesty’s pleasure”, which was stated in the report on Bermuda to be in lieu of the sentence of death pronounced on a person who was under 18 years of age. Referring to the report on the Turks and Caicos Islands, one member questioned whether setting the age of 16 as the minimum age for the imposition of the death penalty was consistent with the Covenant. It was noted that the reports on the British Virgin Islands, Cayman Islands, Gibralter and Hong Kong contained information concerning the laws governing the crime of genocide. Questions were asked about the legislation concerning this crime in the other territories and about the crimes which were punishable by a death sentence.

311. In connection with article 7 of the Covenant, members of the Committee expressed their grave concern at the existence of corporal punishment in the British Virgin Islands, the Turks and Caicos Islands and Hong Kong. Since this kind of punishment no longer existed in the United Kingdom, members of the Committee wondered whether it should continue to be applied in the dependent territories. In this connection reference was made to the report on Gibraltar which described solitary confinement as one of the punishments that could be applied in that territory and whether this did not, in the view of the United Kingdom, constitute inhuman treatment. It was also asked whether the legislation in the territories provided for persons to be subjected without their free consent to medical or scientific experimentation; whether the immediate relatives were asked for their agreement and who took the final decision in this matter.

312. With regard to article 8 of the Covenant, the question was asked whether any cases of forced labour existed in the territories. Referring to the report on Pitcairn, one member enquired whether the public work referred to was paid; who decided whether work was public; for how long such work was performed; whether the length of time was left to the discretion of the administration; and what remedies were available in the event of dispute. It was noted that in the reports of Belize, Gibraltar and St. Helena it was stated that, in cases of breach of contract, the courts would not generally order specific performance. Questions were asked as to whether there were exceptional cases in this regard; whether labour disputes were solved in accordance with the normal civil law or specific labour laws; and whether restrictions existed in the field of employment on the basis of race. The representative was also asked whether all the remnants of slavery had been abolished in the territories.

313. With reference to article 9 of the Covenant, it was observed that the Bermuda Constitution Order 1968 provided for the deprivation of liberty of a person for specific purposes, but it did not indicate what legal safeguards existed against the misuse of that provision. Referring to the paragraphs in the reports on Belize, the British Virgin Islands, Gibraltar and Hong Kong, which stated that, in general, an arrested person must be informed of the true ground of his arrest, information was asked about the exceptions in this respect. More information was sought concerning bail in some territories such as Belize, the British Virgin Islands, Gibraltar, Hong Kong and Pitcairn, in view of the financial implications it might have on the less privileged. The question was asked as to whether detention was under the control of the local police or that of the metropolitan Government.

314. More information was requested on the implementation in the dependent territories of article 10 of the Covenant. Referring to statements in the report concerning the arrangements that existed between the territories for the execution of sentence of imprisonment, some members asked whether such arrangements were also made between the United Kingdom and the territories, and if so what facilities were provided for family visits in view of the great distance between the prisoners and their relatives. Mention was also made of a statement in the report on Hong Kong to the effect that a convicted prisoner could be required to do useful work for not more than 10 hours a day and that minors could be sentenced to detention in a training centre for a period of six months to three years. The question was asked whether, in the view of the United Kingdom, this did not constitute a violation of articles 10 and 24 of the Covenant and, if so, whether the United Kingdom could not ask the governor of Hong Kong to bring about the necessary changes in this regard.

315. With reference to article 12 of the Covenant, clarification was requested on the reasons for the reservation to paragraph 4 of this article in respect of the Cayman Islands. It was also asked whether all persons residing in the dependent territories could live in the United Kingdom without the fulfilment of any formalities.

316. In respect of article 13 of the Covenant one member, referring to the report on the British Virgin Islands, asked the justification for the deportation of a person who was destitute. He also asked what was the justification for extending a deportation order to the wife and children of the alien concerned and whether this would not constitute discrimination based on sex. It was noted that, according to the report on Belize, aliens could be deported without having the opportunity to have their cases reviewed resulting in a violation of article 13 of the Covenant. Questions were asked on whether guarantees existed in the territories against the deportation and expulsion of persons who took refuge in the territories; the reason for the reservation on the application of this article in Hong Kong; and whether the Government was contemplating the withdrawal of this reservation. More information was requested with regard to the rights enjoyed by aliens in the territories. Did they, for example, enjoy political rights?

317. As regards article 14 of the Covenant, questions were asked on whether judges were recruited from the local population or from the metropolitan population, and how the independence of judges was guaranteed in the dependent territories. Noting that the Constitution Orders provided that a person should be presumed innocent until he was proved or pleaded guilty, one member wondered whether this might not open the way for by-passing the presumption of innocence, for example by putting pressure on an accused person to make confessions of guilt. Clarification was required with regard to the appeal procedure applied in Belize and Hong Kong where specific leave to appeal was required; the right of the accused in Gibralter to interpretation throughout the court proceedings; the extent to which a victim in the Turks and Caicos Islands could bring an action against the authorities if there were no legal provisions for compensation from public funds; and the extent to which the procedure for making ex gratia payments in other territories was in conformity with paragraph 6 of article 14 of the Covenant.

318. In respect of article 17 of the Covenant, more information was requested on the guarantees for privacy of correspondence in Belize; and on the justification for the interception of correspondence of prisoners in the British Virgin Islands, Gibralter and Pitcairn.

319. In connection with article 18 of the Covenant, questions were asked on whether there was a dominant religion in the territories; whether the local religions were respected; which religions were prohibited; was atheism prohibited; and were the people allowed to express their opinions and their socialist convictions. Referring to the report on Belize, one member stated that, if parents were required to obtain special permission for their children to absent themselves from religious worship and instruction, this could be considered a violation of article 18 of the Covenant. It was noted that freedom to manifest one’s religion or beliefs was restricted by law in Belize, the British Virgin Islands, Gibraltar, Montserrat and the Turks and Caicos Islands only to the extent that this was necessary to secure public safety, order, health or morals, or the rights of others and more information was requested on these restrictions.

320. With reference to article 19 of the Covenant, members of the Committee asked whether the list of exceptions to freedom of expression contained in paragraph 58 of the report on Belize was exhaustive and, if not, what other restrictions existed; what was the meaning of the expressions “blasphemous” and “seditious” used in that paragraph; what punishment was provided for sedition; what recourse a citizen of a dependent territory had if he thought that his freedom of expression had been violated; and, with reference to the report on the Turks and Caicos Islands, what were the restrictions imposed on the public officers in respect of their freedom to express opinions.

321. With reference to article 20 of the Covenant an explanation was requested on the meaning of the sentence “a reservation has been entered to reserve the right not to amend or introduce further legislation on this subject” contained in paragraph 25 of the report on the Cayman Islands. It was asked whether the statement in the same paragraph that advocacy of hatred in certain circumstances was an offence under the Public Order Law 1973 meant that such advocacy was not otherwise an offence. It was also noted that none of the dependent territories seemed to have legislation prohibiting war propaganda as required under article 20 of the Covenant.

322. With reference to article 21 and 22 of the Covenant, explanations were requested on the expression “in the interests of the community as a whole” which justified the restriction on freedom of assembly in Belize, the British Virgin Islands, Gibraltar and Hong Kong, and on the statement in the report on the Cayman Islands that members of the Civil Service were precluded from taking an active part in any political arguments or electoral campaigns but were free to belong to a political party and to vote.

323. In respect of articles 23 and 24 of the Covenant questions were asked on what the legal age for marriage in Belize was; whether in the British Virgin Islands a woman could ever be considered head of the family; who received child custody in case of divorce; whether there were provisions for the payment of alimony; how widows and children were protected; and whether a husband in Gibraltar could legally rape his own wife if they were not separated; and whether there were, in St. Helena, any provisions for family planning. It was noted that in the British Virgin Islands a woman could lose her nationality if she married a foreigner and the question was asked whether that did not constitute a violation of article 23 of the Covenant. It was also asked why the status of children born out of wedlock in the dependent territories seemed to be inferior to that of other children.

324. In connection with article 25 of the Covenant, members of the Committee asked how the rights of the people provided under this article of the Covenant were guaranteed so as to ensure their active participation in the conduct of public affairs; and what was the percentage of the indigenous officials in the governments of the territories. They referred to the statement in the report on Belize that only English-speaking citizens could be elected Members of the House of Representatives and to other conditions relating to property and income for candidature in an election, and pointed out that these language requirements were not in accordance with articles 25 and 2 of the Covenant. Questions were asked as to who presided over the legislative council of the Falkland Islands; what authority did the members have and what ethnic groups did they represent; how and under what criteria were the executive and legislative councils in Hong Kong appointed; whether, under the circumstances, the people of Pitcairn could really take a firm stand on matters affecting relations between them and the United Kingdom; why only male persons in Pitcairn over the age of 21 years were eligible for election to the office of Island Magistrate or the Chairman of the Internal Committee; what were the conditions required by the candidates for public office in Gibraltar, and why, in the Turks and Caicos Islands, public officials were excluded from the election to the legislative council.

325. It was noted by a member of the Committee that, with regard to article 26 of the Covenant, the authors of the report had used Dicey’s concept of equality before the law as part of “the rule of law”, that is to say, equality before the courts. This definition applied to article 14 of the Covenant. Article 26, however, did not refer only to this Diceyan concept of equality before the courts, but also to the “egalitarian” concept of “equal protection of the law”, in the sense of non-discrimination. Thus, article 26 was not as restrictive as indicated in paragraph 136 of the report on Hong Kong, paragraph 112 of the report on Gibraltar, paragraph 145 of the report on the British Virgin Islands, but rather had the wider egalitarian meaning which was to be found in paragraph 39 of the Bermuda report and paragraph 75 of the Belize report, in which the authors accepted the post-Second World War definition which prohibited all discrimination.

326. With reference to article 27 of the Covenant, the question was asked whether Chinese or English was used in the administration of Hong Kong and whether Chinese was the medium of communication within the Chinese community. One member pointed out that the text of the report on Montserrat dealing with article 27 of the Covenant was not very clear because it said nothing about the actual practice and therefore required some explanation. Referring to paragraph 75 of the report on Belize which stated that territory’s law applied equally and without discrimination “to all nationals and aliens” some explanations was requested, inasmuch as knowledge of English was a condition precedent to membership in the legislature, thus constituting discrimination.

327. With regard to the question of the preservation by the peoples of the territory of their own customs, language and culture, the following questions were asked: whether they were allowed to have their own schools where their own language was the medium; whether their cultures, rites and religious practices were encouraged; whether they were provided with medical aid and social security; and whether child labour was allowed. With regard to the problems of the identity of the dependent territories the question was asked as to whether there was a policy to safeguard this identity or rather a policy of assimilation through the medium of the English language.

328. From the statement contained in paragraph 74 of the report on Belize, there appeared to be a grave risk of assimilation being carried out in that territory by a policy designed in effect to suppress the Spanish language. If this were true, it would constitute a violation of article 27 of the Covenant.

329. The representative of the United Kingdom replied to those of the observations and questions summarized in the preceding paragraphs on which he could comment at least in part, subject to the possibility of amplifying or modifying those comments later when the questions and observations made by members of the Committee had been fully studied by the authorities of the dependent territories concerned.

330. Responding to questions under article 1 of the Covenant he stated that British colonial policy was governed by a principle which could aptly be summarized as “stay if you like, go when you wish”. He was in agreement with members of the Committee that in 1979 colonies constituted an anomaly but at the same time there was a dilemma: if the people wished to remain there would be certain constraints imposed on their wishes, including the matter of helping the United Kingdom perform its international obligations. Experience had demonstrated that there was no panacea but each territory must be treated on its own merits and according to its own wishes. It should also be recalled that while General Assembly resolution 1514 (XV) of 1960 dealt with independence, the Covenant spoke of the right of self-determination. In his opinion, St Helena would never be able to achieve independence. He gave additional information concerning the political development in each of the 11 territories which he divided in two groups; the first group which might be termed “political” dependencies included Hong Kong, Gibraltar, Belize and the Falkland Islands and the second group consisted of what might be termed the “normal” colonies, which comprised the rest.

331. Because of the geographical and historical circumstances of Hong Kong, the members of the Executive and Legislative Council were not elected although members of the urban council were. However, considerable efforts were made to ascertain the views of the interested parties and act accordingly. In his experience the Hong Kong Government was obliged to take more account of public opinion that were those of some neighbouring independent territories. The Chinese language was freely used in communications between the Government and the public at large.

332. For the United Kingdom Government, the wishes of the people of Gibraltar were paramount. As shown by the result of the election of 1976, people in Gibraltar were opposed to being placed under Spanish sovereignty. There was a House of Assembly and an official Opposition.

333. As for Belize, all has been set for independence for several years. Only international political difficulties constituted an obstacle and discussions were in progress to solve the problem. Elections would be held within a few months.

334. The population of the Falkland Islands had been given the assurance by the United Kingdom that any proposals affecting their future must be acceptable to them. He informed the Committee that the population of the territory was only 1,800: nearly all of them were of British descent and 80 per cent were born in the territory. On many occasions the people had expressed the desire to retain their links with the United Kingdom. There was at present no demand for independence. Discussions continued with Argentina to solve the international political aspects of the problem. He informed the Committee that recently a Minister of the United Kingdom visited Buenos Aires, as well as the Falklands, for this purpose. As requested he gave detailed information concerning the system of government of the islands.

335. With regard to other dependent territories, that is to say, the “normal” colonies, the representative provided the Committee with the following information: (a) Bermuda : In 1977 the Government of Bermuda published a Green Paper on independence. Two studies undertaken by the United Bermuda Party, which was the party in power, showed that the majority did not want independence. A White Paper would be published in the near future. In his personal view, Bermuda would eventually become independent but not for several years. (b) The British Virgin Islands : The people of the territory did not want independence in the near future. The question of independence was not raised during the election in 1975 and most likely would not be an issue in the next election scheduled later this year. The territory would probably become independent, but only, when, with the aid of the United Kingdom, its economy became stronger. (c) The Cayman Islands : the people were strongly opposed to any discussion on independence and to any new constitutional changes, which in their view, would inevitably lead in that direction. The visit of the United Nations Committee of 24 to the Islands in 1977 was very much resented not only by the people, but also by the local press and some members of the Government. The United Kingdom was blamed for this visit and he had been asked to ensure that no such visit occurred in the future. In his view, the increasing political instability in the Caribbean would hardly encourage the Cayman Islands to seek independence. (d) Montserrat : General elections were held in November 1978, but the two parties did not raise the question of the future of the territory. There was no movement in favour of independence. The people were free to determine their own future in accordance with the principles of the Charter. It was possible that regional pressure would lead Montserrat eventually to opt for independence, but not before it had consolidated its economy. (e) The Turks and Caicos Islands : the Government of the territory had informed the United Kingdom Government of its intention to ask for certain constitutional changes with a view to moving towards political independence. On the other hand, the Opposition was at present not in favour of independence. His impression was that the party in power would like to make the constitutional changes a prelude to independence provided that it would succeed in consolidating the economy of the territory. (f) St. Helena : On several occasions the Legislative Council of the territory had informed the United Kingdom Government that the population did not wish to become independent and, accordingly, no further constitutional changes were contemplated. Because of its scarce resources it was very difficult to see how St. Helena could be independent in the foreseeable future. The Island relied very much on the United Kingdom for substantial grants-in-aid. (g) Pitcairn : This island was a special case. He agreed with members of the Committee that although the Island had only 65 inhabitants their human rights should not be ignored. Fewer and fewer boats passed near the Island and they were now very expensive to divert and even then they had to stop at the reefs which surround the Island. Much of the required public work mentioned in the report was necessary to man the long boats to transport merchandise to the Island. If one day there were not enough people to carry out this job, most likely every one would have to migrate, for instance, to New Zealand. He said the Island had a council of 10 members which exercised legislative powers under the supervision of the Governor. A Committee of the council was responsible for traditional public works and supervised their execution.

336. Replying to another question under article 1 of the Covenant he assured the Committee that there existed frequent ministerial contacts between London and local administrations to find out the wishes of the local population. For example, a Minister of the Foreign and Commonwealth Office was at present holding discussions with the Chief Minister of Montserrat. In this connection he once again emphasized that British colonial policy was not to force the people of the territories to do something contrary to their wishes.

337. In reply to the question concerning the “exorbitant” power of the governors. He explained that colonial governors were not ambassadors but administrators. Nevertheless, they conveyed the wishes and policies of the British Government to the local population. At the same time they very strongly represented the wishes of the local population to London. He added that the Governor was not a dictator because his powers were limited by the restrictions and requirements provided by the laws, the conventions and the instructions of Her Majesty in Council. In general he could not take decisions until after having consulted various persons or bodies. Above all he was responsible for peace and good order in the territory and for the well-being of the people. To this end he was vested with residual powers. In this connection he referred to article 27 of the Constitution of Belize.

338. With regard to the question concerning Ocean Island, the representative stated that the island was now a part of the new republic of Kiribati inasmuch as it would not have been appropriate for the United Kingdom to lay itself open to a charge of dismemberment of territory before the granting of independence. The situation was not comparable to that of the former Ellice Islands, now Tuvalu, which were separated from the Gilbert Islands as a result of a referendum.

339. Regarding the protection of the natural resources of the dependent territories, he stated that the British Government was very sensitive to the defence of the interests of the peoples of the dependent territories at various international forums, including the United Nations Conference on the Law of the Sea. No immediate benefits would accrue for the United Kingdom in cases of discoveries of deposits of oil, for instance. In this connection he stated that, for example, if the present search for oil off Anegada in the British Virgin Islands succeeded, the United Kingdom would not directly benefit from the discovery.

340. In response to the question concerning the status of the Covenant in the dependent territories and the incorporations of the provisions of the Covenant in the Orders in Council of these territories, he explained that before the ratification of the Covenant, the Government of the United Kingdom had ensured that the legislation in force in the territories was in conformity with the provisions of the Covenant. He stated that the legislation of the United Kingdom as well as that of the dependent territories contained the principles of common law and equity which in his opinion were not at all nebulous. These principles were solidly founded on decisions of the courts, which had been accumulated in the course of the years. In some of the territories, namely those which were approaching independence, there existed Orders in Council or other constitutional instruments which embodied the provisions contained in the Covenant.

341. As to the question whether the laws of the metropolitan area were automatically applicable in the dependent territories, he stated that some were and others were not. He explained that in colonies which were settled by the British, the principle was that the colonizers brought their laws with them when they settled there. In the case of territories which had been conquered, the existing laws continued in force until they had been amended by the new authorities. In general, following a decision taken locally or more often by the metropolitan public authority the principles of common law and equity were introduced in the territories subject to local laws and the metropolitan laws which had already been in force. In brief, the application of metropolitan law in the territories was not automatic.

342. In response to the question concerning the responsibility of the United Kingdom for ensuring that the dependent territories comply with the provisions of the Covenant, he stated that in principle it was evident that in case a dependent territory failed to respect a certain obligation under the Covenant, the United Kingdom could be held responsible at the international level. As a matter of fact the United Kingdom attached a great importance to the observance by all States of their international conventional obligations and made sure that the legislation of territories was in conformity with the provisions of the Covenant. Of course, due to local circumstances certain provisions of the Covenant were not always literally reflected in the local legislation. If it proved necessary to amend the legislation, this would necessarily take some time.

343. In reply to a question concerning the declaration of the United Kingdom on the relation between the Charter and the Covenant, he stated that that declaration was made in case there was a contradiction between the provisions of the Covenant and those of the Charter. In fact the declaration may not have been necessary in view of article 103 of the Charter.

344. In reply to the question concerning the New Hebrides, the representative stated that no report was submitted on that territory because the United Kingdom shared responsibility for this territory with France. He added that the New Hebrides could be expected to become independent in the near future.

345. In reply to a question concerning the statement in the report on the Cayman Islands that the territory “is bound by the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms”, he explained that this was in accordance with article 63 of the European Convention on Human Rights which stated that any State could, at the time of its ratification or at any time thereafter, declare that the Convention should extend to all or any of the territories for whose international relations it was responsible. Invoking this article the United Kingdom had declared in 1953 that the Convention applied to most of its dependent territories. The following territories were bound by the European Convention: Belize, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, St. Helena and Turks and Caicos Islands. With regard to the right of petition of the individual and acceptance as compulsory of the jurisdiction of the European Court of Human Rights, provided for by articles 25 and 46 of the European Convention, these two provisions were applicable to Belize, Bermuda, the British Virgin Islands, the Cayman Islands, the Falkland Islands, St. Helena, and the Turks and Caicos Islands.

346. In reply to questions concerning the British Indian Ocean Territories and the bases in Cyprus the representative stated that the Covenant was not ratified in respect of these two Territories.

347. Responding to a question under article 2 of the Covenant as to whether the Crown Proceedings Ordinance of the British Virgin Islands provided sufficient recourse against the Crown, he stated that article 3 of the Ordinance had abolished previous restrictions applicable in cases against the Crown.

348. Responding to a question under article 6 of the Covenant in relation to paragraphs 12 and 13 of the report on Bermuda, particularly concerning the meaning of the term “during Her Majesty’s pleasure”, the representative stated that the imprisonment in such cases could be about eight to nine years and that the circumstances of each case determined the duration of sentence.

349. With regard to paragraph 10 of the report on Bermuda which dealt with cases when a person could be deprived of his life, the representative called the attention of the Committee to article 2 of the annex to the Bermuda Constitution Order 1968, in particular to the phrase, “ to such extent and in such instances as are permissible by law, of such force as is reasonably justifiable” which left it to the court to decide whether the circumstances and the means used in a particular case made the deprivation of life justifiable.

350. As to the question of the death penalty, the Common Law provided only the ingredients for murder but did not define the word murder. Traditionally, crimes which were punishable by the death sentence were treason, piracy and murder. In most countries where the crime of murder was statutory a distinction was made between simple and pre-mediated murder. The concept of the Common Law, however, made a distinction between “intent to kill” and “killing with malice aforethought”, rather than in accordance with the degree of murder.

351. In reply to a question related to the passage in the report of the Turks and Caicos Islands which gave the impression that youths of 16 years of age could be sentenced to death, and to the query concerning the sending of children to centres of detention in Hong Kong, he stated that he would study the matter and communicate the results to the Committee later.

352. Responding to a question concerning what action had been taken by the United Kingdom in connection with violation of article 3 of the European Convention, which was equivalent to the article 7 of the Covenant, the representative stated that if the question was related to the decisions concerning certain practices in Northern Ireland and the decision taken earlier this year on the subject of corporal punishment on the Isle of Man, he reminded the Committee that the reply to the question of the United Kingdom could be found in its supplementary report of 13 September 1978, document CCPR/C/1/Add.35, paragraphs 14 to 17; and in CCPR/C/SR.149, paragraphs 3.

353. The question was also raised as to whether the decision taken under the provision of the European Convention should be applied to analogous provisions of the Covenant. He stated that it would be erroneous to consider the decisions under the provision of the European Convention as conclusive and also binding in respect of similar articles of the Covenant. He reminded the Committee that the two instruments were adopted under different circumstances and there was an interval of 20 years between them. Also the European Convention was an instrument with a regional character, that it would not necessarily be appropriate to apply the same interpretation to analogous provisions of the Covenant which had a world-wide character. However, this did not mean that one should not take into account the decisions of the European Convention, which would be of persuasive weight in construing the analogous expressions used in the Covenant. As to corporal punishment, neither the European Convention nor the Covenant used that expression. It was a matter of interpretation of the term “degrading treatment”. The United Kingdom Government would study this question with great care, in particular, as it applied to the different situations of the dependent territories. The observations made by the members of the Committee on this subject were certainly very useful. With regard to specific information requested on corporal punishment in certain dependent territories, the Government would reply in writing at a later stage.

354. In reply to a question under article 8 of the Covenant relating to paragraph 41 of the report on the British Virgin Islands concerning the hard labour which could be imposed at the discretion of the court for crimes for which such an option was expressly provided, he said that the competent authorities would be consulted on the matter. Responding to another question under this article, he said that slavery did not exist in any of the territories.

355. Commenting on questions under article 9 of the Covenant relating to bail as referred to in the reports of a number of the dependent territories the representative stated that this measure was intended to secure the liberty of a person and at the same time to ensure his attendance at the subsequent hearing. The question of payment usually only arose if the individual concerned failed to appear in court. In fact, the judges, in the exercise of their authority, took into account the financial situation of the individual, because the aim of this measure was not to keep someone in prison if he had no financial resources.

356. With regard to the question of compensation for unlawful arrest or detention, he said that in practice article 9, paragraph 5, of the Covenant was applied in spirit. However new provisions should perhaps be contemplated to observe fully the provisions of the Covenant. This question would be studied further.

357. In reply to a question under article 10 of the Covenant related to paragraph 5 of the report on St. Helena, he believed that the punishment was applied after it had been confirmed by the non-resident Chief Justice. He, however, undertook to seek confirmation of this matter with the authorities concerned.

358. Responding to a question under article 14 of the Covenant related to paragraph 3 of the section of the report on the Turks and Caicos Islands, he said it seemed that the provision was not aimed at the Government but at the authority which was responsible for instituting criminal proceedings maliciously or without reasonable cause. He would provide further clarification on this matter.

359. In reply to a question relating to paragraph 2 of article 6 of the Bermuda Constitution which provided that a person could be declared guilty if he pleaded guilty, the representative stated that in practice the judge may often refuse the confession as a proof. However, one could consider that a plea of guilty in itself was proof of culpability. As to the question of whether the accused was responsible for the cost of the attendance of his witnesses, the representative stated that as far as he could remember, in Bermuda at any rate the cost of the defence witnesses and that of the accused was defrayed from public funds.

360. With regard to the question as to who decided that court proceedings should be held in camera, he said that the decision was in the hands of the judge but that proceedings in camera were extremely rare.

361. Referring to a question in connection with article 14, paragraph 3 (f) of the Covenant, and paragraph 39 and 65 of the report on Belize and Gibraltar respectively, the representative assured the Committee that in practice all the pertinent proceedings were interpreted for the benefit of the accused.

362. With regard to the question of the independence of the judges, he stated that in general the judges were appointed and dismissed by the Governor. However, in all these matters he acted on advice of the Judicial Commission. For the dismissal of a judge, the opinion of the Privy Council was indispensable. In practice, this guarantee ensured security of tenure to judges. However, he pointed out that, as in many other countries, the necessary funds for the functioning of the judiciary did not depend on the legislative and executive bodies but were a permanent charge on public funds. The question of inflation, however, should be taken into account in the matter. He believed the question merited further study.

363. The representative stated that if there was a conflict between the provisions regarding the fundamental rights contained in the Constitution of certain territories, the question would be settled by a superior court such as the Supreme Court.

364. In reply to a question concerning the shifting of the burden of proof from the prosecution to the accused, as referred to in the report on Hong Kong, the representative stated that in principle the burden of proof rested on the prosecution. However, in certain special cases it was shifted to the accused, for example in cases where a person was found to be in possession of explosives or dangerous drugs. In this case, it was for the accused to explain the lawfulness of his possession.

365. With regard to the question concerning the entrenchment of fundamental rights and freedom in Orders-in-Council, for example, the Bermuda Constitution Order 1968, he stated that if the entrenchment was enacted by an Order-in-Council the rights could not be affected by laws adopted by the local legislature. Sometimes, the Order-in-Council contained provisions which stipulated that they could only be amended by a special procedure, for example, by a two-thirds majority of the Parliament or by referendum. These guarantees had proved to be effective.

366. In reply to a question under article 15 of the Covenant concerning the adoption of an ex post facto legislation, he stated that so far not a single territory had enacted legislation in contradiction with article 15 of the Covenant. In this connection he referred to the reply concerning the United Kingdom in this respect contained in paragraph 16 of document CCPR/C/SR.70 of 1 January 1978, which was also valid for the dependent territories.

367. Responding to a question under article 19 of the Covenant the representative replied that except in Hong Kong, for reasons which were already explained, political parties were allowed; they could criticize freely the local Government and the Governor. Voluntary organizations and trade union meetings were allowed to flourish and public meetings and discussions were free and lawful.

368. As to the questions asked in relation to paragraph 58 of the report on Belize, he stated that the list of limitations on freedom of expression was exhaustive.

369. Responding to questions under articles 19 and 21 of the Covenant concerning the definition of “blasphemous” and “seditious” he stated that he would provide the Committee with the definition of these expressions at a later stage. In the meantime he called the attention of the Committee to the law on “Sedition and Undesirable Publication” of the British Virgin Islands which contained a definition of “Seditious intention” as follows: “An intention to bring into hatred or contempt or to excite dissatisfaction against the person of Her Majesty, her heirs, or successors, or the Government of the Colony as by law established ... to incite the inhabitants of the Colony to attempt to procure the alteration, otherwise than by lawful means, of any other matter in the Colony by law established ... to bring hatred or dissatisfaction among the inhabitants of the Colony”. However, the law expressly provided that no publication could be considered seditious simply because it sought to show that the Government had committed an error; to underline the errors or the shortcomings of the Constitution of the Colony; or to persuade the inhabitants of the Colony to try to change by legal means the legislation of the Colony. He stated that a simple criticism of the Government was certainly not a seditious act.

370. Commenting on the observations made on article 20 of the Covenant, the representative stated that the United Kingdom had made a reservation with respect to this article. He referred to document CCPR/C/2.

371. In reply to a question under article 23 of the Covenant concerning the marriage laws in force in Belize, the representative stated that in accordance with the existing law persons below the age of 18 required parental permission to get married. With regard to a question whether the law in the British Virgin Islands provided for alimony and child care in case of divorce, he stated that alimony was provided by article 22 of the Matrimonial Cases Ordinance of the Territory and article 25 of the same Ordinance authorized the court to decide on the custody of the children.

CCPR A/40/40 (1985)

518. In accordance with the statement on its duties under article 40 of the Covenant adopted at its eleventh session (CCPR/C/18) and the guidelines adopted at its thirteenth session regarding the form and content of reports from States parties (CCPR/C/20), and having further considered the method to be followed in examining second period reports, the Committee, prior to its twenty-fourth session, entrusted a working group with the review of the information so far submitted by the Government of the United Kingdom of Great Britain and Northern Ireland in order to identify those matters which it would seem most helpful to discuss with the representatives of the reporting State. The working group prepared a list of issues to be taken up during the dialogue with the representative of the United Kingdom. The list, supplemented by the Committee, was transmitted to the representatives of the United Kingdom prior to their appearance before the Committee with appropriate explanations or the procedure to be followed. The Committee stressed, in particular, that the list of issues was not exhaustive and that members could raise other matters. The representatives of the United Kingdom would be asked to comment on the issues listed, section by section, and to reply to members’ additional questions, if any.

519. The Committee considered the second period report of the United Kingdom of Great Britain and Northern Ireland (CCPR/C/32/Add.5) at its 593^rd to 598^th meetings, held from 9 to 11 April 1985 (CCPR/C/SR.593-598).

520. The report was introduced by the representative of the State party who stated that a number of significant developments had taken place in United Kingdom domestic law and administrative practice since the submission of his country’s initial report. They included the enactment of the Police and Criminal Evidence Act, the Mental Health Act, the British Nationality Act and the Data Protection Act, changes in the rules governing prisoners’ correspondence and a review of disciplinary offences applying to prisoners and of the arrangements for their investigation, adjudication and punishment. The arrangements for compensating miscarriages of justice were also currently under review by the Home Office as was its legislation on public order. The Interception of Communications Bill, which placed the interception of communications on a statutory footing and established machinery for investigating complaints of unlawful interception, and the Prosecution of Offences Bill, which for the first time established a national prosecution service independent of the police and provided for statutory time-limits within which a defendant must be brought to trial, were currently before Parliament. Domestic courts were also making increasing use of the procedure for judicial review, under which the reasonableness of administrative decisions could be challenged before the courts and a ruling obtained. Finally, all the recommendations of an independent inquiry into the operation of the prevention of terrorism legislation, which were designed to mitigate the severity of some of that legislation’s provisions, had been implemented in the Prevention of Terrorism (Temporary Provisions) Act 1984 and the Government was currently reviewing the Northern Ireland emergency legislation in the light of the recommendations of a 1984 inquiry into that legislation.

521. The representative noted that his country’s second periodic report concerned only the metropolitan territory of the United Kingdom and that a supplementary report on the United Kingdom dependent territories would be submitted shortly, for consideration by the Committee at a future session.

Constitutional and legal framework as well as other measures adopted to give effect to the Covenant

522. Members of the Committee wished to receive more specific information about new legislation and regulations adopted to give effect to the Covenant as well as about the extent to which pre-existing legislation and regulations afforded adequate protection of rights covered in the Covenant. They also asked whether there had been any precedent-setting judicial decisions regarding the implementation of the Covenant or cases in which reference had been made to the Covenant; and, given the fact that there was no written constitution and no written bill of rights and that the courts operate on the basis of common law and precedents, whether the United Kingdom was in fact in a position to “ensure” that the Covenant’s provisions were given proper effect. Furthermore, it was asked how, under such circumstances, citizens could be aware of their rights and judges could apply the provisions of the Covenant. It was noted that the Privy Council could adjudicate on human rights provisions entrenched in certain Commonwealth constitutions but the judiciary could not do so in the case of the United Kingdom itself, because the United Kingdom had failed to enact similar legislation. In that connection, members asked what consideration had been given to the possible introduction of a bill of rights or similar measures for ensuring the implementation of human rights which, they felt, would provide a firmer basis, for compliance with the Covenant. It was also asked whether the existing system of specific remedies actually covered all of the rights under the Covenant. Additional information was also requested about the legal framework in Scotland and Northern Ireland and about factors and difficulties, particularly of a political and economic nature such as race relations or unemployment, that might have affected the implementation of the Covenant. In that respect, members requested further information about the human rights situation in Northern Ireland. Regarding promotional activities, it was asked what specific measures were being taken to enable people to enjoy civil and political rights, what steps had been taken to overcome existing economic inequalities, whether the Covenant, the Standard Minimum Rules for the Treatment of Prisoners, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Code of Conduct for Law Enforcement Officials had been publicized among the armed forces, the police and prison officers, especially in Northern Ireland, and whether the general public in the United Kingdom was aware of its rights under the Covenant. Noting that women were placed at a disadvantage under certain provisions of the British Nationality Act of 1981, a member requested additional details about that legislation.

523. In his reply, the representative of the State party explained that in his country the existence of human rights and individual freedoms had been traditionally assumed and that such rights were protected by common law. Thus, it had not been considered necessary to adopt legislation to cover every possible infringements of human rights. However, recently it had become necessary to enact protective measures and declaratory laws in such areas as race relations, sex discrimination and data protection. Clearly, the law and administrative practice were evolving in keeping with the Covenant’s principles and the need to stay abreast of changing circumstances.

524. Over the past 10 years there had also been considerable debate in Parliament concerning the possibility of enacting a bill of rights, but as yet no bill had won sufficient support to permit any further action. While the idea of a bill of rights enjoyed considerable support in some parliamentary and legal circles, without regard to party affiliation, there was also considerable opposition from those who argued that it would represent a surrender of influence by the House of Commons in favour of the judiciary and the legal profession. The Government hoped to submit new proposals in that regard at some future date, but in view of the lack of broad agreement it did not feel it possible to take action at the present time. Consideration was also being given to various progressive measures which would fall short of incorporating a bill of rights into the national legislation. The current approach of applying ad hoc remedies to problems and situations as they arose might continue. Although that approach had the disadvantage of being inconsistent and difficult to understand, it provided effective remedies to particular problems. It should also be kept in mind, however, that providing a wide range of remedies could give rise to abuses which might be very detrimental in the long run to Government. In addition, the Government was considering the practicability of the partial incorporation of relevant provisions of the Covenant or the European Convention on Human Rights into the national legislation.

525. Regarding new or existing legislation and regulations to give effect to the Covenant, a list of the relevant laws and regulations had been appended to the report and copies of the texts made available to members of the Committee. There had also been several court rulings under the process of judiciary review which had a significant impact inter alia, on the rights of prisoners set out in the Covenant, and rulings of the European Court of Human Rights had also prompted the enactment of domestic legislation. Concerning the legal framework in Scotland and Northern Ireland, the representative noted that a considerable body of law, for instance that governing immigration, nationality and data protection, was applicable to the United Kingdom as a whole. Some other laws, for instance those on equal pay, sex discrimination and race relations, extended to Scotland. Separate legislation, based on the same principles, existed for Northern Ireland but legislation against religious or political discrimination, which did exist there, had no parallel in the rest of the United Kingdom. Thus, in so far as the system of common law applied in Northern Ireland as it did in England and Wales the law was substantially the same, with divergences occurring mainly with respect to statute law in such areas as those illustrated above.

526. With regard to promotional activities, both the Covenant and the work of the Human Rights Committee were well publicized, as was the European Convention on Human Rights. Informed opinion in the United Kingdom was well aware of the possibilities offered by the two instruments and of how they could be used to ensure the protection of human rights in the United Kingdom and internationally, and the Government had not felt it necessary to engage in any additional promotional activities. As to whether there were factors and difficulties affecting the implementation of the Covenant, it was a fact that there were some areas of national life in which the provisions of the Covenant could not be reconciled with Government policy and practice. In such areas, which included sex discrimination in immigration control legislation and differing political views as to whether or not specific legislation should be enacted to give effect to the Covenant, the United Kingdom had entered reservations to the Covenant.

527. Concerning the extent to which it was possible for courts in the United Kingdom to base decisions on the provisions of the Covenant, the representative explained that the situation had not changed since the submission of the United Kingdom’s initial report. In interpreting provisions of domestic law British courts took into account all the obligations of the United Kingdom under international legal instruments to which it was a party. While he did not know of any particular case in which the Covenant had been referred to in a court decision, there were no restrictions preventing litigants from involving provisions of the Covenant in a court of law and, in fact, in many instances lawyers did refer to the legal obligations of the United Kingdom under the Covenant and the European Convention of Human Rights in presenting their cases. Undoubtedly, the Government of the United Kingdom could also speak before judicial bodies as amicus curiae for the purpose of drawing their attention to certain provisions of international law; in practice, international instruments were often brought to the attention of the court by the judge himself or by lawyers.

State of emergency

528. With reference to that issue, members of the Committee wished to know whether the rights covered by the Covenant which had been derogated from had been fully restored following the termination of the state of emergency on 22 August 1984, whether there were any differences in that regard between Northern Ireland and other parts of the United Kingdom and whether any other emergency or exceptional measures were still in forces and, if so, whether they affected the enjoyment of human rights and were considered adequate. Additional information was requested regarding the measures that had been taken to investigate deaths resulting from the action of security forces in Northern Ireland and the results of such investigations, particularly in the context of preventing the recurrence of such acts, in line with the Committee’s general comments 6 (16) (art. 6). In that connection, it was asked who controlled the actions of the police and the security forces. Members asked for clarification of several other aspects relating to the emergency, including the operations of the Diplock courts in Northern Ireland, whose procedures seemed inconsistent with articles 2, paragraphs 1, 14 and 26 of the Covenant. They also asked whether the required measures in the political and social fields had been taken to solve the problems which had led to violence and whether any improvement or progress had been achieved towards the resolution of the Irish question; whether the recommendations of the Bennett Committee on police interrogation practices had been put into effect and, if so, to what extent; and whether there was any parliamentary control over the emergency powers of the executive in Northern Ireland, including the police, who appeared to have the power both to carry out investigations of police misconduct and to decide whether prosecutions were warranted. Referring to paragraph 3 of the Committee’s general comment 5 (13) concerning article 4 of the Covenant, members also requested information about the nature and extent of each right derogated from and why it was now thought possible to operate within the provisions of articles 9 and 14 of the Covenant. It was further asked how far it had been possible for an individual to have recourse to the Covenant in order to establish whether measures taken by the Government were legitimate.

529. Replying to those questions, the representative of the State party said that his Government had withdrawn its notice of derogation from the Covenant not because there was no longer an emergency in Northern Ireland, but because it believed that the rights in the Covenant were currently fully observed throughout the United Kingdom. In fact, there were still two Acts of Parliament in force which provided special powers: the Northern Ireland Emergency Provisions Acts 1978, which conferred special powers of arrest and search and established special judicial procedures for territories, and the Prevention of Terrorism (Temporary Provision) Act 1984. Those measures were considered sufficient to deal with the situation, but the Government was also currently considering some recommendations based on an independent i