The Joint Committee report stated: “We note that at least one external institution has already sought to put pressure on the Commission in carrying out its role.” This made specific reference to correspondence between the then RUC Chief Constable Ronnie Flanagan and Brice Dickson regarding the decision by the Human Rights Commission decision to fund a judicial review of the policing of the Holy Cross school blockade in September 2001.
After the Human Rights Commission discussed and decided against taking a legal case in its own name, one of the Holy Cross parents, through her solicitors, Madden and Finucane, sought funding from the Human Rights Commission to take a case against the RUC Chef Constable. The case became known as E v Chief Constable and Secretary of State. The submission to the Joint Committee from Madden and Finucane stated: “The judicial review amounts in essence to a challenge to the failures in the policing and security operation conducted by the RUC in terms of how they failed to: adequately protect and vindicate the rights of schoolchildren subjected daily to inhuman and degrading treatment as they walked to school; and failed to take all necessary steps to secure the effective implementation of the criminal law and to secure the prevention, suppression and punishment of breaches.”
The Casework Committee of the Commission agreed to fund the case, though Brice Dickson, who chairs the committee, dissented. Following the decision by the full Commission to fund the case, the Chief Commissioner took it upon himself to write to the Chief Constable of the RUC, the respondent in the proceedings, to advise him that:
1. The decision to fund the applicant’s case was not unanimous;
2. Some Commissioners opposed the decision of other Commissioners who swore affidavits in the case.
3. Some Commissioners opposed the decision to release the notes of the meeting to the court
The Chief Commissioner stated “I am myself strongly of the view that the policing of the protest at the Holy Cross school has not been in breach of the Human Rights Act.”
The correspondence between the Chief Commissioner and the Chief Constable was not made available to the parent at the time that it was written and her solicitors only became aware of its existence in April 2002, when the Commission disclosed it to them. In March 2002, while legal documents and affidavits in the case were still being exchanged for the judicial review proceedings, the RUC Chief Constable sent a letter to Brice Dickson raising the following issues about the case:
- The decision by individual commissioners to swear affidavits in the case; (the Commissioners being Frank McGuinness, Paddy Kelly and Inez McCormack; all of whom were regularly on the Ardoyne Road during the protest and who often walked up to the school with the children and their parents.)
- The ‘continued funding by the Commission of the litigation’ and the vintage of the dispute which had at that stage been suspended.
The evidence submitted to the committee said that in a letter to the Chief Commissioner on 21 March 2002, Ronnie Flanagan stated that he “very strongly urge the Commission to review its funding decision, having regard to the vintage of the dispute and the resources issue. I would strongly maintain that it is inappropriate for the Commission to continue to commit public funds to this litigation.”
The Chief Commissioner amazingly replied to this correspondence stating:
“Our Commission meet again on Monday 8 April and we will be considering then our involvement in this particular litigation. I should be able to let your office know on the following day what the outcome of our consideration has been. I would be most grateful if you could delay taking a decision on the disclosure of my letter of 4 December until then.”
Dickson was responding to information from the Chief Constable who said that his lawyers wanted to disclose Brice Dickson’s previous letter, stating that he believed the Holy Cross parent had no case, to the court.
The Holy Cross parent was unaware of the correspondence between Flanagan and Dickson discussing the merits of her case and its continued funding. She was also unaware that the Commission was discussing her case on 8 April.
What happened at the meeting on 8 April was disclosed by former Commissioner Christine Bell:
“Removal of funding from the applicant’s case was discussed on 8 April 2002 Commission meting. The matter was raised by the Chief Commissioner who made a proposal to withdraw funding on the grounds that the Commission did not have sufficient funds to pay for it. This was then discussed, culminating in a consensus decision to ask the casework committee to draft criteria for reviewing case funding in all cases.”
Brice Dickson made the proposal to withdraw funding despite the fact that no bill of costs had yet been presented. When challenged about it later in the media he said: “But, I mean, we all know how expensive court cases can be, especially if they drag on and senior counsel are involved.”
Christine Bell’s recollection of the meeting was supported by an amended minute of the meeting and recording of Inez McCormack’s dissent on the issue, all of which are available on the Commission’s website.
After the 8 April meeting, when the applicant received copies of the document, she sought to have these and the Commissioners’ affidavits placed before the court and then issued a press release through her solicitors. The Chief Commissioner’s responded by seeking to have funding for the case removed by writing to the applicant criticising the issuing of the press release, arguing that it was a breach of the terms and conditions under which funding had been granted. The parent’s solicitors replied to Brice Dickson refuting this and raising a number of questions regarding the 8 April meeting. Dickson replied in contradiction of all the evidence that:
“…funding of the above case was not discussed by the Commission on 8 April 2002. Instead, quite properly in my view, the Commission decided to ask the Casework committee to develop criteria against which the continued involvement of the Commission in all of its cases could be reviewed in the future.”
Madden & Finucane raised a number of serious concerns about this conduct with the Joint Committee on Human Rights, saying that the correspondence amounted to a “significant breach of trust” and raised issues as to “a breach of confidentiality given the Chief Commissioner’s access to information which could be regarded as subject to legal professional privilege and was entirely unethical and unprofessional.”
Following disclosure of these events and calls for his resignation, the Chief Commissioner, when interviewed in the media, maintained his assertion that he believed that he had done the right thing at the time and would not be resigning. In fact, when challenged, he said “I think the priority at that time was to keep the Commission together”.
The fact that this breach of trust and misconduct has irreparably damaged the Commission’s independence and impartiality, as well as its responsibility as custodian and defender of human rights, seems not to have penetrated into the mind of the Chief Commissioner.
His actions have in effect destroyed the last vestige of credibility that the Commission may have had. It now looks set to collapse in on itself under the weight of its own lack of vision, failure to honestly and impartially uphold the human rights of all citizens and due to the failure of individuals to defend the Commission from interference from the state.