16
Examination of witnesses
Oliver Sanders, Professor Kieran McEvoy and Gráinne Teggart.
Q13 Chair: Welcome back to the second part of our proceedings today in the Joint Committee on Human Rights, where we are looking at the new Northern Ireland Troubles Bill, which is currently before the House of Commons and will eventually come to the House of Lords. We are carrying out legislative scrutiny; it is an early stage, and we are all ears. We want to hear from our witnesses so we can think about whatever recommendations we might wish to make to the Government as the Bill proceeds.
I am very glad to be able to welcome our three guests today. First, we have Oliver Sanders KC, who was called to the Bar of England and Wales in 1995 and took Silk in 2017; he joined the Bar of Northern Ireland in 2020. He specialises in public law and human rights, as well as inquests and inquiries. In the national security context, he has acted for the intelligence services, Government and the police in relation to closed material procedures and public interest immunity. He acted for the chief constable of the police—PSNI—in Northern Ireland—in the recent Supreme Court case of Thompson, which concerned public interest immunity in legacy inquests. He provided legal advice to Operation Kenova and is acting for a group of former undercover officers at the Undercover Policing Inquiry. Before joining his current chambers—1 Crown Office Row—in 2004, Mr Sanders spent seven years in the Government Legal Department working on the Northern Ireland peace process, public law, litigation and the Hutton Inquiry.
We also have Professor Kieran McEvoy, who is chair of the Senator George J Mitchell Institute of Peace, Security and Justice and a professor of law and transitional justice at Queen’s University in Belfast. He is a fellow of the British Academy and a member of the Royal Irish Academy. His work focuses on the relationship between law and transitional justice, including truth recovery, human rights, amnesties, restorative justice and the role of lawyers in conflict. He has conducted research in over a dozen conflicted or transitional countries. He is widely recognised as an expert on dealing with the legacy of the conflict in Northern Ireland, having worked closely with the UK and Irish Governments and other stakeholders for many years. He is currently a Leverhulme major research fellow, working on a project designed to encourage former paramilitary groups to address past harms. Professor McEvoy is a board member of the Committee on the Administration of Justice and a founding member of Community Restorative Justice Ireland. He is also a member of the Joseph Rowntree Charitable Trust peace and security committee.
Finally, we have Gráinne Teggart, who is no stranger to the Joint Committee on Human Rights; we have been grateful to her in the past for the submissions she has made to us and the information she has provided. Ms Teggart has worked for more than two decades on human rights questions. She has worked with Amnesty International UK for over 16 years and is a Northern Ireland deputy director. She manages campaigns, strategic litigation and government and political affairs across a whole range of areas, including Northern Ireland legacy matters. Ms Teggart has directed Amnesty UK’s interventions in a range of critical human rights cases spanning torture, sexual and reproductive rights and legacy matters, including Re: Dillon and others. She is a spokesperson for Amnesty UK and frequently contributes to media on these matters.
Our questions to the three of you will seek information about the independent commission on information retrieval, interim custody orders, retrospective compensation claims, the legacy commission, some issues which we explored with our first panel and any recommendations that you might have for the improvement of the Bill which is now currently before us.
With that, let me turn to Mr Alex Sobel, Member of Parliament.
Q14 Alex Sobel: The Bill would set up a new independent commission on information retrieval, a body which will have complete immunity from all legal proceedings. This will prevent, for example, the ICIR’s own employees from bringing cases against their employer. Is this immunity compatible with human rights? In addition, a person who provides information to the ICIR will not be immune from prosecution, but none of the information they provide will be admissible in any legal proceedings. Is this compatible with human rights? For example, what if a person is being prosecuted for murder, but the ICIR has received information which demonstrates that someone else was the perpetrator?
Professor Kieran McEvoy: Thank you very much for the invitation to address the committee today. As most committee members will be aware, the ICIR mechanism is based upon the work of the Independent Commission for the Location of Victims’ Remains, which was established in 1998 and was a cross-border body set up in a similar way. That body was successful in ensuring that 13 of the 17 people whose remains had been secretly buried by Republicans were returned to their families through voluntary information received from the armed groups responsible. There was general recognition across the community in Northern Ireland that it had been a success.
That then fed into the negotiations in the Stormont House Agreement, and the two Governments and four of the five political parties in Northern Ireland agreed to establish a similar mechanism. I very much welcome the fact that the two Governments in the framework agreement returned to that model. It is important to stress that the information retrieval model is only for victims who wish for it, and it is provided partly in response to pressure from victims to have such a mechanism; victims wanted this.
There will be two parallel processes. First will be an emphasis upon investigations and skilled investigators doing, in effect, truth recovery work, because everyone accepts that there will be very few prosecutions. Secondly, there will be a parallel and separate mechanism whereby victims, if they want to do so, can say, “I would like to seek information on the death of my loved one, and I recognise that none of the information received can be used for prosecutorial purposes or civil actions”. People are going into it with their eyes wide open, and it is not for everyone. Victims can exercise choice.
On the question of whether it is lawful, I think it is, and I will briefly explain the reasons. This was considered in particular by Mr Justice Colton in the High Court in Belfast in a first instance judgment when he was considering the lawfulness—or not, as it turned out—of Boris Johnson’s immunity scheme. In that judgment he said that a set of tests would determine whether such a mechanism as this was lawful, and the first would be the intent of the legislation. The intent of the Johnson Government’s immunity scheme was very clearly to prevent the prosecution of veterans; they were pretty frank about that. The intent of this scheme is to allow victims a choice of whether or not to use it.
Mr Justice Colton also stressed the role of victims in the Boris Johnson scheme, if I can call I that; victims were not involved in the process at all. Victims have triggered this scheme and it operates as a result of an intervention from victims.
In determining that the previous government scheme was unlawful, Mr Justice Colton and the Court of Appeal concluded that it interfered with the Article 2 rights of the European Convention of Human Rights. If this scheme is operated as currently envisaged in the Bill, it is my view that it will not interfere with Article 2 rights because Article 2 investigative obligations are being satisfied in the legacy commission. They are completely separate, the investigative process is happening separately, and there is no dotted line across from the black box, if we can refer to it as that; one of your colleagues suggested to me that the ICIR is a black box, and I like the phrase. There is no dotted line between the two, and if it is established as envisaged in the legislation, my own view is that, as per Mr Justice Colton’s test, it would be lawful. Obviously, however, that will be for the courts to determine.
Alex Sobel: Ms Teggart, what is your view around these two issues of immunity and the inadmissibility of evidence in legal proceedings?
Gráinne Teggart: I would concur largely with what Professor McEvoy has said. It is clear that the provision of protected statements is not an amnesty and, as Professor McEvoy has rightly pointed out, the joint framework has clearly stated that it will not impinge on those investigations that will be undertaken by the legacy commission. That is critical in this process, as it was with the ICIR under the Stormont House Agreement. There will likely be further detail that we will need to see, and discussion particularly around sequencing and farewelling. But certainly, I would agree with what Professor McEvoy has said, and we are satisfied that with sequencing and the further detail that is to come, it could be human rights compliant.
Oliver Sanders: Taking the two issues in turn, in terms of the inadmissibility of information recovered by the ICIR, one can see that the justification for that is very strong in relation to material that could incriminate someone because otherwise its provision may be inhibited. But as you mentioned, if it is exculpatory material—if it shows that someone may be innocent—then that is much further away from the justification. It could be odd if someone were being prosecuted and ICIR material was available to suggest that they were innocent or that someone else was responsible. So there is an issue there.
Alex Sobel: Is it an issue that the Government need to deal with?
Oliver Sanders: Yes.
Chair: Do you have any suggestions about how it could be dealt with? If so, please send them to us after the hearing is over because we are giving this very serious consideration.
Lord Carlile of Berriew: Can I ask you, Mr Sanders, about what you just said? Would the ICIR, knowing that a prosecution was taking place, not be under a duty to supply the Director of Public Prosecutions with that information? The Director of Public Prosecutions would inevitably consider exercising his discretion not to allow a prosecution to proceed in the public interest.
Oliver Sanders: One would hope so, or that a mechanism to ensure that happened could be incorporated. But it could potentially arise in the civil context as well, so that is an issue.
In relation to immunity, there is the more prosaic point about contracts and employment relationships and so on, as you touched on; ordinary state immunity under the 1978 Act does not extend that far, so there is a question about that. It might deter people from forming contracts with the commission or whatever it was.
Then there is a more fundamental issue, which is whether the body itself is a public authority for the purposes of the Human Rights Act, or whether it is not because of the immunity from suit. From the language of the legislation, I am not entirely clear of the policy intent on that issue; in the agreement, it says that the commission should not be subject to data protection legislation, but that is not reflected in the Bill and it would be difficult to see how it could be.
Chair: You are saying that we need to probe further into the status.
Oliver Sanders: Yes.
Q15 Sir Desmond Swayne: Mr Sanders, the Bill, in effect, re-establishes convictions for escape from lawful custody that were previously quashed on the grounds that the order had not been properly signed. Does that breach Article 7 of the ECHR?
Oliver Sanders: In terms of criminal convictions, if the conviction should have been quashed and it is now being re-established or reinforced, then that would be a retrospective liability, so the answer is yes. My own view in relation to the interim custody order provisions is that the debate, the arguments and the counter-arguments are already set out in the Dillon case. One can see that the formulation of the provisions has changed and the circumstances in which they are being introduced has changed, so when the arguments are rerun, there is the possibility of a different outcome. But essentially, the arguments are already there in Dillon and there has already been a finding that there is a problem, not only in relation to Article 7 but Article 6 and Article 1 of Protocol 1.
Gráinne Teggart: On the ICOs, the Government abandoned that part of the appeal after the findings from the courts in Belfast. Given that the findings were unequivocal, we had anticipated that we would see that addressed either through remedial order or legislation. We are obviously aware now that we may expect or anticipate that a legal challenge is either lodged or will be lodged; we anticipate that in those circumstances we will see that Article 6 and Article 7 are engaged.
Professor Kieran McEvoy: I have nothing to argue.
Q16 Afzal Khan: Article 6 of the European Convention on Human Rights prohibits laws which retrospectively take compensation claims away without justification. The Bill would prevent people who have received convictions as a result of invalid interim custody orders from getting the compensation they might currently be entitled to. Is this compatible with Article 6 of the European Convention on Human Rights? Can I also ask whether it makes a difference to the human rights analysis whether a case has already been started before the Bill receives Royal Assent?
Oliver Sanders: I would give the same answer as on Article 7; essentially one can see what the debate is in Dillon. The Government accept that Article 6 and Article 1 of Protocol 1 are engaged and that there is an issue here; it is essentially a rerun of that argument. But the case for saying that there is an incompatibility is obviously a powerful one, and I do not think it makes a difference in terms of when the claim is issued. My understanding is that it does not in fact apply to a huge cohort of claims in any event.
Afzal Khan: The Government have accepted the High Court’s decision that the legacy Act provision on interim custody orders breached Article 6. The Government say that the equivalent provisions in the Troubles Bill are compatible with Article 6. Are the Government right?
Oliver Sanders: I do not think that is something to which I can give a yes or no answer; all I can say is that clearly, on the basis of Dillon or on the basis of the concessions made, there is an issue that needs to be resolved. In relation to Article 6 and Article 1 of Protocol 1 it will come down to the strength of the justification, so that has been slightly reformulated and made more of a central part of the Bill, but whether it is now powerful enough to overcome the claimant’s or plaintiff’s case is to be decided.
Peter Swallow: I might be at risk of asking the same question from a different direction, but that might be what is needed. There is obviously a very significant challenge with the ruling on ICOs; there is a widespread acceptance—I know there are those who disagree with this view—that we cannot be left in a situation where those ICOs are retrospectively ruled as not to have happened, without any way of resolving that tension.
What method, if not this, could there be for the Government to square that circle while supporting our obligations under the ECHR? I know that is a difficult question—perhaps a hypothetical one—but as it is the question the Government seem to be seeking to answer, I would value your thoughts.
Oliver Sanders: Primary legislation is the only route available to reverse the outcome of a Supreme Court decision.
Q17 Lord Carlile of Berriew: I want to ask you a question about disclosure. We are talking about two levels of disclosure here; Clause 13 of the Bill requires full disclosure by relevant authorities to the legacy commission; quite detailed provisions are set out in Clause 13 and the clauses that follow. But at the next level, the Secretary of State would retain ultimate control over whether sensitive information can be disclosed to victims and their families; sensitive information is defined in the Bill for this purpose.
One might say that this is rather different to the way in which disclosure works in inquests and inquiries. In inquests, of course, it rather depends on the level of co-operation of the public authorities concerned and on the determination of the coroner to secure full disclosure. Do you think it is appropriate to have a situation in which the Secretary of State retains that control in the light of Article 2 and 3 of the convention? Does the Supreme Court decision in Thompson, which was mentioned earlier, affect that situation or have any implications on the approach to national security in the Bill?
Oliver Sanders: In relation to the comparison with inquests and inquiries, the basic disclosure obligation and the way in which it would happen is fundamentally the same in that the relevant authorities are obliged to provide everything that they have to the commission. The Secretary of State’s veto, as it were, would come in later when it comes to onward disclosure outside the commission, which might be in the context of an investigation, inquisitorial proceedings or a report arising out of either. So the basic model is the same, but there is more in the Bill by way of provision in terms of regulating and managing it. The definition of sensitive information is now narrower than under the legacy Act 2023, but it is still wider than in comparable statutes because it incorporates not just damage to national security, but also the risk of damage to national security. So there is a different formulation which must—one would have thought—be intended to capture a wider range of information.
In Schedule 4, there is an obligation on relevant authorities when they are providing information to the commission to flag whether it is “sensitive” at that point. That is logistically problematic, particularly for the Police Service of Northern Ireland because it just wants to provide the legacy commission with the relevant material. Having to first conduct an exercise of differentiating and identifying sensitive information is logistically very burdensome. It also engages a problem of principle: when you designate information as sensitive, you are thereby engaging what is called Prohibition B on onward disclosure. From the outside, it will seem that an organisation such as PSNI has an opportunity at the outset to put information into a different pot, which then puts the legacy commission under additional obligations. That in itself is problematic, and it potentially puts the relevant authority providing the information to a great deal of unnecessary effort. It may be that the commission looks at the files and says, “These are not going to help us, we do not need to look at them,” when a huge amount of time has been gone through marking them as sensitive or not sensitive. So there are issues there.
That approach is not replicated when it comes to the legislation, for example, the Investigatory Powers Commissioner and the Intelligence and Security Committee of Parliament. Other national security organisations obviously have disclosure obligations on them, but they are not as regulated as this and so there is a perception that the Secretary of State is exercising greater control.
Finally, briefly, I do not think the Thompson decision changes that much. The jurisprudence on what constitutes a risk to national security, who is responsible for assessing it and the different stakeholder interests there may be will be applied first by the Secretary of State and then ultimately on appeal by a court reviewing his decisions; it will be up to the courts to require sufficiently detailed evidence to justify any national security concern.
Lord Carlile of Berriew: Do I take it that you regard the architecture of the Bill as reasonably good and enforceable?
Oliver Sanders: Schedule 4 and Schedule 5 are not necessarily incompatible with convention rights; it will just be more difficult to operate, and there are unnecessary restrictions. If the legacy commission were given comparable guidelines and guardrails to the Investigatory Powers Commissioner, that would be sufficient. Ultimately there will always be some point at which the Secretary of State can object to onward disclosure, but the current system mechanics appear to have a measure of overkill and to be problematic for the relevant authorities conducting them.
Professor Kieran McEvoy: Lord Carlile, this is the big one in terms of the credibility of this Bill. It was discussed in the previous session, but there are a number of reasons why the national security veto is a very significant challenge to the overall architecture of this Bill. This committee will be aware that the three UN special rapporteurs—on transitional justice, on extrajudicial killing, and on torture, inhuman and degrading treatment—issued a collective statement saying that, “The veto power could lead to concealing the involvement of state agents in extrajudicial killings, torture and other violations, which is incompatible with international and ECHR standards”. So first, in terms of the national security veto, there is the risk that human rights violations are hidden or obscured.
Secondly, the national security veto being exercised in this way is undermining trust and confidence in the state in general and in policing in particular. The chief constable has been very strong on this; as he said in a speech in December at the Committee on the Administration of Justice AGM, it is the police who get blamed when the veto—which is sometimes referred to as the MI5 or MoD veto—is exercised. He is very clear about his difficulties and the fact that this is undermining relations with the Catholic community in particular. So there is that issue.
Thirdly, I know that the special rapporteur on transitional justice is doing a piece of work at the moment on the relationship between transitional justice and what is sometimes called post-truth politics. Some people are not interested in getting to the truth of what actually happened during the conflict; they only want to put forward their version of what happened. A Bill like this—where MI5 or the MoD determine what families do or do not get—allows entrepreneurs to say, “It was all the Brits’ fault”. In the post-truth world we live in, if you are undermining the credibility of any institution to get to the truth, it allows people like that to say, “Well, sure, MI5 decides what goes to the families”. So it is a huge issue, a huge challenge for the Government.
The Government are genuine in their efforts to finally address and deal with the legacy of the conflict; we are probably in the last chance saloon. I have personally been working on this for 20 years; this is the biggest challenge to the Bill getting through. For some people at home, they see the MoD or MI5 tail wagging the dog, where the Government are making a genuine effort to do something that is really difficult and challenging and so forth. But actually, you have actors within the security establishment who are less interested in that big picture and more interested in ensuring that embarrassing details are not forthcoming.
Lord Carlile of Berriew: There was a similar discussion about the duty of candour.
Professor Kieran McEvoy: Absolutely.
Lord Carlile of Berriew: In the discussion about the duty of candour, there was a strong argument that MI5, or any body, should not mark its own homework. What suggestions do you have for introducing a system that would mean that national security was protected but the security services or the police were not marking their own homework?
Professor Kieran McEvoy: I think the duty of candour conversation is very relevant. I actually saw the submission by the Chinook families, which some members will be aware of, and I thought it was extremely powerful on exactly this point of the security services and others marking their own homework.
At different junctures we have tried different ways of squaring the circle at home. For example, at one stage my colleagues and I put forward something to the NIO to suggest that perhaps you could beef up the judicial role in determining what is or is not a legitimate national security interest. You could define the national security interest in a particular way to talk about lawful counterterrorist and contemporary operations; if for example the security service or others said, “This is cutting across contemporary and lawful efforts by us in the counterterrorism space”, that would be a perfectly reasonable argument. You could put a definition of national security on the face of this Bill which states that it only relates to addressing the conflict in Northern Ireland.
We have tried various ways to persuade our colleagues at the Northern Ireland office in genuine good faith to try to get imaginative around this, but I stress to members very strongly that if it is perceived in Northern Ireland that the MI5 or MoD tail wags the dog, it will damage the credibility of the whole Bill, which is a great shame.
Chair: My colleague Baroness Chakrabarti has been doing a lot of work on the public accountability Bill that you referred to a few moments ago in your evidence.
Q18 Baroness Chakrabarti: I am stimulated by your very honest and clear answer. Is the human rights rule of law not the way to approach a judicial decision, in whatever context? It could possibly be an ex parte application on the part of the establishment, the Government, or whoever, but in the end, there would be a judicial determination about what was genuinely going to put lives at risk, directly or indirectly, by compromising something that was a matter of national security and not political embarrassment.
Professor Kieran McEvoy: I strongly agree.
Gráinne Teggart: That is actually a point we made in our submission to this committee; it is a solution we have offered. I do not want to duplicate or repeat what has been said, but just to add our concerns with the national security provisions in the Bill. Obviously, the draft Bill in substance does retain the national security veto that is already subject to a declaration of incompatibility by the courts in Dillon and others; I appreciate that that is subject to appeal at the Supreme Court and we are awaiting that judgment, but it is a concern for us.
I want to flag a couple of other provisions. First, the national security veto in this Bill has in effect been expanded to encompass a new power for the Secretary of State to issue restriction notices to judicial panel members during inquisitorial proceedings. Obviously, that speaks to the confidence that victims will have in these processes. Those restriction notices can apply to attendance, the identification of witnesses, the disclosure or publication of evidence or documents over and above the restrictions on sensitive information; we consider that that regime is fundamentally not compatible with victims’ rights to truth. We would urge the Government, hopefully via this committee, to reconsider that regime in its totality.
I also wanted to flag an issue with the ICIR. We are concerned that the Secretary of State now has an even more unqualified veto to block the ICIR from publishing sensitive information; that veto power has no requirement whatsoever to balance national security risks against the family’s interest in disclosure, and there is no right of appeal. I have flagged this with the NIO in meetings with the Secretary of State, but we would urge that it is one of the provisions that would need to be swiftly addressed.
Q19 Peter Swallow: I want to highlight the philosophical discussion that can be drawn out from what we are discussing today. It is one that this committee will return to on a number of occasions and with regard to a number of different issues, particularly where there is a philosophical disagreement about whether decisions should be made by elected politicians—who have a democratic mandate—or independent judges, who one would hope would be impartial. I want to stress that this is a philosophical question with strong arguments on either side of that point, and it is one to which this committee regularly returns.
Where I want to press you is when you talk about an MI5 veto; the proposal here is for this power to sit with the Secretary of State, and that is different. This goes to the philosophical difference I have pointed out. You might hold the opposite political view, but it is not right to say that this would be an MI5 veto; this would be a senior politician with democratic authority holding that decision-making power.
Chair: You will be very glad to know that you have a few minutes to think about that because Dr Swallow is now going to go and vote in a Division along with my House of Commons colleagues. When they come back, we will briefly go to you, then we will hear from Baroness O’Loan and we will be drawing quite close to the end of this session; I am very conscious that you have planes to catch back to Northern Ireland. I am suspending the sitting.
Sitting suspended.
Chair: Welcome back to this afternoon’s proceedings of the Joint Committee on Human Rights. We have been suspended for a couple of minutes while my House of Commons colleagues have been to vote, and we are grateful to them for getting back here as quickly as they have. We had just had a question by Dr Peter Swallow; Professor McEvoy, you are going to come in first.
Professor Kieran McEvoy: You are correct, Dr Swallow; it is the Secretary of State who will ultimately make the call. I suppose the concern in Northern Ireland is that it would appear that MI5 in particular, and perhaps the MoD, have a disproportionate influence on the Secretary of State. The Thompson case is a perfect illustration of that; a coroner concluded that he could agree to a limited gist of information being provided to a family, and ultimately an agreement was reached with the chief constable of the PSNI. That decision was upheld in the High Court in Belfast, and by the Northern Ireland Court of Appeal, but the Government kept appealing. That would suggest, therefore, that on that particular issue within the policy-making community, the voices that were being listened to were MI5 and the MoD in particular, because the chief constable took a diametrically different point of view.
The other thing to stress is that these problems are not unique for societies that are trying to address the past. It was Richard Crossman who said that secretiveness is the real English disease. Any country that has had to set up a truth commission has had to work through what to do around issues of national security. The jurisprudence that is most developed is actually in the inter-American court system, as you might expect for countries that moved out of dictatorships in Latin America and so forth, and the inter-American court has produced a template of guidance on some issues. But in broad terms, the inter-American court has ended up saying that states cannot use secrecy as a way of obscuring information going to properly mandated truth commissions. They cannot use it where human rights violations have occurred in terms of the responsible onward passage of information; in other words, you cannot deny information from national security archives or whatever going to a truth commission.
But in terms of the onward disclosure to families or to the public or whatever, you can put an obligation for anonymisation so that there cannot be Article 2 violation, revenge attacks or whatever. You cannot hide behind a veil of national security or official secrecy. What you do is you give all the information over, and then you put responsibilities on the body, on the truth commission, or in our case, the legacy commission, to make sensible decisions about protecting the rights of people. You anonymise it, and you would probably look at risks around the triangulation of data and so forth. This design challenge is not new; it is just that in the UK system, there is such an emphasis upon secrecy and national security that it makes the design overly complex.
Chair: I have been trying to avoid the Richard Crossman dilemma of removing secrecy. Earlier on, you said that some serious academic work is currently being carried out on this; it would be helpful perhaps to point us towards that, and to best practice from overseas and other jurisdictions. These are things we can certainly think about as a committee.
Professor Kieran McEvoy: I would be very happy to follow up on that.
Chair: I once sat through a session in Rwanda with the Attorney-General in the Gacaca process, and it was an extraordinary experience. It may not have direct relevance in the Northern Ireland setting, but that and what happened in South Africa are things that we can learn from, which certainly might help to deal with the Richard Crossman point that you made before.
Gráinne Teggart: I would add that the Sean Brown case is another one that illustrates the point well. That judgment referred to the weight that was being given to the interests of the MoD and MI5 in the advice, and ultimately, the decision of the Secretary of State for Northern Ireland in refusing to grant a public inquiry to that family. It was particularly highlighted given that the MoD had acted as an interested party in those inquest proceedings.
Looking at this—and being mindful of victims and the need for them to be centred through these processes—we are not arguing against lawful national security concerns. No one is asking for lawful covert methodologies, for example, to be revealed. But we have to be reminded and consider the fact that closed or limited disclosure regimes create a lack of transparency, and they could provide either a real or perceived sense of impunity. Many victims in Northern Ireland feel that they have been fighting for truth and accountability in the context of a culture of impunity. With this legislation we have an opportunity to address national security provisions and other provisions in the Bill, including Article 3 investigations; these can give families human rights-compliant mechanisms to obtain answers that they have long sought and fought for. This is, frankly, long overdue.
Oliver Sanders: On the philosophical question, it is fairly uncontroversial to say that the Government or the Executive should have the final say as the body responsible for national security, but it is more to do with the test that is being applied. The guidance from the Supreme Court in the Thompson judgment is that when the Secretary of State is making a decision, he needs to consult all relevant experts, including the police, intelligence services, military, and so on, and weigh up their advice. In Thompson, you can see from the judgment that it was essentially advice from MI5 that underpinned the challenge because there is a reference to the MI5 affidavit being general and formulaic and needing more detail. That is the test, and it is very difficult for a Secretary of State who is faced with advice from MI5 saying, “This will damage national security”, to be able to say, “Well, I disagree”. It is quite rare for that to happen, but the prosecution decision in the Brian Nelson case is an example, when Lord Mayhew stood up to MI5 and said, “No, this needs to happen, notwithstanding that it will disclose that he was an agent”.
Q20 Baroness O’Loan: Before I start, may I just say that I am currently working on legacy issues as an assessor for the Pat Finucane Inquiry, and I am a member of the international steering group for Operation Kenova and Operation Denton, which is currently very much under discussion in the matters we were just discussing.
The Bill would allow the legacy commission to launch an investigation where a person has suffered “serious physical or mental harm”, and the Bill lists what would constitute serious physical or mental harm. Do you think that threshold and that exhaustive list is compatible with Article 2 and Article 3?
Gráinne Teggart: In short, no. Actually, we believe that this can be resolved quite easily; the reference in the legislation to serious physical and mental harm can stay, but what should be removed is Clause 27(3), which is a prescribed list of conditions. It is very obvious to see that some types of harm will fall outside those definitions, so if the Government were to agree and table an amendment to remove subsection (3), that would straightforwardly deal with the compatibility issue.
Chair: Is that your view too, Mr Sanders?
Oliver Sanders: Yes, because Article 2 could be engaged in cases not only where there is a death, but also where there is a near-death incident or an attempted suicide. Likewise, Article 3 could be engaged in cases where there is physical or mental harm or suffering of a lower level than that which falls within that definition.
Chair: Do you agree too, Professor McEvoy?
Professor Kieran McEvoy: Yes.
Chair: In that case, we will turn for the last question to my colleague, Dr Swallow.
Q21 Peter Swallow: Thank you all for coming in and giving evidence today. It has been extremely helpful to hear from yourselves and from the previous panel on what is a complex and sometimes challenging subject; where we want to get to is often clear, but not necessarily the journey to get there. Beyond what we have already discussed in this session, and bearing in mind the evidence we heard from the earlier session as well, do you have any key recommendations for anything further that you would like to see considered as this Bill is scrutinised to ensure that we get to where we want to be going?
Professor Kieran McEvoy: Certainly, yes. One thing—which was raised by the Victims Commissioner in the previous session—is around the role of statements of acknowledgment. Committee members will be aware that the framework agreement between the British and Irish Governments includes a commitment for the two Governments to issue statements of acknowledgment. Such statements have been hugely powerful in the past; for example, Lord Cameron’s statement of apology after Bloody Sunday, which was hugely impactful and a really important historical moment. I interviewed Bloody Sunday families about it, and I interviewed Lord Cameron himself.
I know this is a human rights committee, but there are soft law standards around how to do effective statements of acknowledgment. The UN special rapporteur on transitional justice produced a framework for this a number of years ago, and I am happy to share it with the committee. It includes things such as an explicit statement and “acknowledgment of a wrong deliberately or negligently inflicted”; the “truthful” owning of past harms; a victim-centred process of rehumanisation; preparation and engagement with victims’ constituencies beforehand to understand what people want and need to hear; the statement of acknowledgment being issued by a person who can speak with credibility; and some careful thought on the sequencing of apologies or acknowledgment. For example, there is a view that apologies or acknowledgment should only come after a truth recovery process. There is another view that actually, it could be quite an important moment if, for example, this legacy Bill gets through and mechanisms are established; if you wanted to create some positive mood music in Northern Ireland as these new mechanisms are starting up, if you had statements of acknowledgment from the two Governments, and the expectation that other actors would also step up, this could be quite transformative for the broader context and would give these legacy mechanisms a fair chance.
That is also something on which I would be very happy to come back to the committee with more detail.
Chair: We look forward to hearing that and receiving it.
Oliver Sanders: I will try to be brief. There are two areas I would like to flag under the heading of any other business. First, in relation to reports, investigations under Part 3 of the Bill and inquisitorial proceedings under Part 4 will both culminate in the production and publication of reports. Under the proposed legislation those reports will have to exclude any sensitive materials, so will not be able to include any national security material.
In reports produced by comparable bodies, there is provision for what is essentially an open report and then an accompanying closed report, which could potentially be published later should circumstances change. Taken together, they would contain the totality of the findings, recommendations and so on. The way in which these provisions are worded in the Bill does not allow for that, certainly in the same way as in comparable legislation. I think that is the policy intention because the Northern Ireland Office memorandum on ECHR compliance refers to closed reports coming out of inquisitorial proceedings, but at the moment, it seems no allowance has been made for that; the report is solely open material. That is the first point I wanted to make.
Chair: I have made a note of that; it is an important point.
Oliver Sanders: I am grateful. The second one is probably equally down to the legal technicalities. This is in relation to the powers of the commission when it is conducting inquisitorial proceedings under Part 4. The question was raised earlier on with Ms Kilpatrick about why we should have inquests and inquisitorial proceedings; the reason is that in an inquest, if there is “sensitive material”—national security material that is subject to PII—it then gets excluded from the process and becomes inadmissible. That may prevent the inquest continuing because it may relate to such a central matter that adjudication effectively becomes impossible. The idea is that inquisitorial proceedings, which are obviously modelled on the Inquiries Act, can hold open and closed sessions and deal with the PII material despite its sensitivity. But there are some places where it has inferior or apparently inferior powers to public inquiries, and it may be, given the time, that I can write to you about that.
Chair: We would appreciate that. Thank you very much indeed.
Gráinne Teggart: I have one final point to make on inquests. It appears that the intention of the Bill is that, after the five-year period, the Northern Ireland Attorney-General’s powers will be restored and he could then direct new inquests. That is something that the Bill would benefit from clarifying. Our understanding is that nine inquests will continue and that the other 24 will then go to the Solicitor-General for a determination as to whether they go into the inquisitorial mechanism or are dealt with through inquests.
We are also concerned about resources outside the end of this five-year period of the legacy commission and then the Attorney-General’s powers being restored. What may look like progress on paper can be undone in practice, and unless the mechanisms that this Bill provides, including the inquest process, are adequately resourced, then victims will not realise their rights to truth, justice and accountability. Recommendations need to be directed to Government around the additional resources that will be required.
Chair: Perhaps you could suggest some questions for us to ask about what resources are available at the moment and what might be required were the Bill to be enacted; we would appreciate hearing from you further.
Let me draw proceedings to a conclusion in thanking the three of you, but also our previous panel as well. In preparing for today and reading through the papers, I was struck by seeing that Professor McEvoy’s chair is named for Senator George Mitchell. It brought back to my mind a lecture he gave in Liverpool, which I chaired; it was quite a remarkable lecture in many ways because he reflected on his time working on the Good Friday agreement and trying to move things forward. He said that the accord “makes the achievement of an endurable peace possible”, but that “there will be many difficult days ahead”, and that, “The animosities of decades, even centuries, don’t vanish overnight”. He said, “It will be a long time before there is a lasting peace, and a longer time before there is a reconciliation”.
The challenge to work on that is also in the last words I am going to use at this hearing; they are words of Her late Majesty Queen Elizabeth II on the occasion of her historic visit to Dublin, where she reflected on what she called the “sad and regrettable reality” of the relationships between us on these islands. She said more than can be imagined had “experienced more than their fair share of heartache, turbulence and loss. These events have touched us all, many of us personally, and are a painful legacy. We can never forget those who have died or been injured, and their families”. She said, “With the benefit of historical hindsight we can all see things which we would wish had been done differently or not at all”.
As I think you said, Professor McEvoy, this is perhaps our last chance. Certainly, it is a good opportunity for us to move on with the process of reconciliation, of co-existence, of the understanding not only between both parts of the community in Northern Ireland but between all the peoples who live together on these islands. You have contributed so well to that process today. I say that as someone who holds both British and Irish passports. You do not hate one country because you love another; you love them both and do what you can.
I feel you have done justice to the evidence you have given us today, and we will try to do justice as we proceed with the rest of the inquiry and come up with the recommendations which we will make to the Government.
With those words, thank you very much for being here, and have safe journeys back.
