Written evidence from Quaker Concern for the Abolition of Torture (Q-CAT) Charity No 1093757 (NIB0001)
Q-CAT campaigns for the elimination of torture and such ill-treatment, which harms both perpetrators and victims.
We doubt the efficacy of the Bill. It will further harm those affected by the Troubles, and undermine truth and integrity in the UK and abroad. It creates a two-tier system of justice, some being immune to justice, others not. This undermines the rule of law and diminishes the rights of all.
Accountability and redress are essential for healing and rehabilitation. The Bill will not deliver either to those seeking justice, nor to government actors.
We agree with Amnesty International statement, May 22nd 2022, that it is
“ …a disturbing interference in the justice system…” and fear that “…victims’ rights have been dismissed in favour of protecting perpetrators”.
1. Review of deaths and serious injury:
1.1 Compliance with the procedural obligations under Article 2 and 3 ECHR
The Bill chooses to conduct a ‘Review’, which does not hold the same legal strength as an ‘investigation’. Under Articles 2 and Article 3 of the ECHR there is a positive obligation to conduct independent, effective and reasonably prompt investigations into deaths, torture and serious injury. Conducting a ‘Review’ rather than an ‘Investigation’ risks breaching UK’s obligations in international and domestic law, with the outcomes being seen as a ‘cover up’ for government agents and past government decision making. The Bill will close down established paths to justice for victims and their families.
Independence
ICRIR compromises the independence devolved to NI by the Good Friday Agreement. The Secretary of State for Northern Ireland (SOSNI) will appoint the personnel, make regulations governing its work, control the resources, and issue ‘guidance’ over aspect of the process and reviews it holds. Further, it is required that some appointed officers have Northern Ireland policing experience. Conferring such wide power on the SOSNI is troubling, especially in the light of the widely held recognition of the complicity of UK government agencies in wrong-doing, including killing and mistreatment amounting to torture, during the Troubles, and in other previous conflicts abroad.
Effectiveness
Current mechanisms
Dealing with the past in NI has been ‘piecemeal’ , with different investigative parts of the criminal justice system involved, and police investigations bedevilled by incapacity to investigate state actor cases independently. Government refusals and delays in the provision of information by state agencies have clearly contributed to slowness in arriving at results despite the requirements of ECHR Article 2.
Nevertheless, the current established mechanisms are continuing to expose past abuses, so some clarity and accountability has been arrived at over the years. Q-CAT asks why these mechanisms have not been better supported by the Government.
Proposed mechanism
The Bill’s lack of scope in the evidence it considers cannot be as effective in revealing currently obscured truths, as would proper investigations or inquests. In comparison to current mechanisms, such as Operation Kenova, the ICRIR will be weak in its ability to enquire; able only to review papers and take, mainly voluntary, testimony.
The role of the SOSNI will enable them to protect state agents’ past actions.
There is a lack of safeguards against discriminatory or abusive use of information. The exercise of police powers is unclear. Given the nature of the Troubles there may well be people who will not wish to present information to ICRIR as constituted: the facts that finally emerge will not represent all those involved.
The Bill will restrict civil and inquest proceedings and police investigations. A cut-off date has been imposed on new cases and on claims. Ongoing inquests have a concluding date of May 2023 and requests made under Article 2 ECHR for a fresh inquest will not proceed. “The police will be prevented from investigating, the courts will be prevented from ruling, prosecutions will be prevented “ (NI Human Rights Commissioner, statement June 2022 ).
1.2 Limitation of ‘reviews’ on deaths and ‘other harmful conduct’
ECHR Article 3 prohibits torture and “inhuman or degrading treatment or punishment “ absolutely and unconditionally. Steps for redress are clear. Article 3 also obliges states to ensure that individuals are protected from torture, inhuman or degrading treatment or punishment.
ICRIR is not an appropriate instrument to address these obligations, given the weakness of its source material, and the governmental role of SOSNI. Actions of torture and ill treatment need to be investigated thoroughly to identify failure of guardianship, and to avoid scapegoating and errors of culpability. The ICRIR cannot do this. The Bill has instituted cut-off times for civil and criminal investigations and inquests, closing paths to thorough, independent investigations and some accountability. The immunity clause suggests that decisions about the consequences for wrongdoing, such as unlawful killing or torture, will rest with the SOSNI, not established forums of justice. SOSNI judgements will be open to accusations of bias and government ‘cover-up’.
Q-CAT believes the definitions in the Bill of “other harmful conduct”, and the examples given (clause 1(6)) of “serious physical or mental harm”, will exclude cases that should be investigated and brought to the courts. The examples given of “serious physical or mental harm” are limited, and exclude conduct and harm that has been accepted as such in legal case history, as well as the known sequelae of torture and acts of a serious and cruel nature.
Human rights will not be upheld by this Bill. The inadequate procedures of the ‘review’ are likely to leave victims, families and others affected by the Troubles more traumatised, including state agents who may have been involved in state violations. This will run counter to any possibility of reconciliation in the future.
Finding a way for more facts to safely emerge about the Troubles, to give closure for those involved, and to work towards reconciliation, for both victims and perpetrators, is an admirable aim. 'Conditional immunity’ does not forward this aim.
As a faith body we do not hold that trying to achieve a ‘good end’ justifies a ‘bad route’ to it. Acting in the most honest, open way possible is less likely to accrue harm and may carry more force for future good.
UK has a duty to investigate and punish serious crimes and breaches of fundamental human rights, such as killings and torture. Torture is prohibited in all situations. The ‘conditional immunity’ scheme is not compliant with international law (Article 2 & 3 ECHR), and the requirement for impartial, full, open and transparent investigations, restitution and appropriate sanctions. Those who have suffered crimes or committed crimes in the Troubles are living with their individual experiences, and suffering the impact of those events. Without the prospect of redress through impartial, legal, thorough processes, there can be little comfort, closure and reconciliation.
Laws are formulated as a map of the boundaries of acceptable behaviour. Allowing lower standards of culpability by introducing ‘potential immunity’ is in fact introducing a dual system. The implications of this resonate well beyond our borders.
It is argued that the offer of potential immunity from prosecution will lead people to testify. Even if, by extending ‘conditional immunity’, new testimony is given, there appears to be no good mechanism for it to be carefully corroborated. Such testimony is not reliable.
The SOSNI is a representative of UK government and has power to choose what testimony to accept, and what to finally reveal. This will give rise to a selection bias; there is already a history of obfuscation in the retrieval and publication of information by UK government to the courts regarding possible misdeeds or mistakes by government agents.
Police powers may be given by the SOSNI to appointed officers, but it is not known how these powers might be used. The SOSNI has also powers over the consequences of any testimony and for offers of ‘conditional immunity’. This will impact the willingness of different parties to give evidence and so prevent reconciliation.
The NITLR contains a cut-off date of five years for ICRIR reviews. Apart from preventing people from pursuing justice this creates the danger that families will be constrained in challenging the ICRIR reviews, particularly those relating to compliance with Article 2. In effect this is an amnesty, yet fails victims and their families.
This Bill does not serve families who have been waiting years for answers to their questions. It does not protect civilians, does not help victims or bereaved, nor assist government officials learn from their encounters in this bitter, domestic discord.
There is an evident lack of independence from Government interests and a limited and biased nature of enquiry. Truth and reconciliation cannot be arrived at by this means. This ‘Review’ is not likely be credible to the public.
This country needs to maintain international standards of accountability and culpability for action within and between countries. The Bill will further damage our standing in the world, undermining our system of justice and democracy.
17/06/2022