Written evidence submitted by the Committee on the Administration of Justice (CAJ), related to Addressing the Legacy of Northern Ireland’s past: The UK Government's New Proposals inquiry (LEG0044)

 

Supplementary written evidence following Oral Evidence before the Committee on 15 June 2022 in relation to the Committee’s work on Addressing the Legacy of Northern Ireland’s past, and the Committee’s requests for two follow up notes. These relate specifically to whether sexual offences fall within the scope of the Northern Ireland Troubles (Legacy and Reconciliation) Bill (hereafter ‘the Bill’) and whether there are precedents for international involvement in appointments to investigation and truth recovery mechanisms. These matters are dealt with in turn below.

Interpretation of sexual offences falling within scope of the Bill (Q517)

1.       The first issue relates to our interpretation as to whether sexual offences fall within the scope of the Bill. In our response to the Bill, attached as an appendix, the position taken by the Model Team was that sexual offences can fall within the scope immunity requests provisions of the Bill: 

‘Troubles-related’ offences are defined as conduct which constitutes a crime in the law that was related to ‘the events and conduct and conduct that related to Northern Ireland affairs’ and occurred between 1 January 1966 and 10 April 1998. The scheme applies to ‘serious offences’, defined as offences that caused death or serious physical or mental harm. Unusually for such an immunity scheme, there is no specific prohibition on certain kinds of crime, such as crimes of sexual violence. It would therefore appear that applicants who had been involved in rape and other crimes of sexual violence related to the Troubles, or indeed the covering up of such crimes within paramilitary or state organisations, would be entitled to apply for immunity under this bill.[i]

2.       The Minister Conor Burns MP in the Second Reading of the Bill argued to the contrary that sexual offences would not be subject to the immunity provisions as they only covered “serious and connected Troubles-related offences that took place [between 1966-1998] and are related to death or serious injury”.[ii] The Minister also argued that it would be outside the scope proposed Independent Commission on Reconciliation and Information Retrieval (ICRIR) to investigate sexual offences, but that the ban on criminal investigations by the police would not apply to sexual offences that were not Troubles-related.[iii] The PPS to the Secretary of State Jonathan Gullis MP has also stated that immunity will not be available under the Bill for sexual offences ‘which are not Troubles-related’ (The House, 6 June 2022).[iv] The ECHR Memorandum published with the Bill argues that ICRIR reviews will provide a means of discharging Article 3 procedural obligations (prohibition on torture) which can include sexual violence.[v]

Concept of qualifying offences relating to the Early Release Scheme and the Bill

3.       It should first be noted that the Bill (in relation to immunity and ICRIR Reviews) uses a different formulation to distinguish offences that are or are not Troubles-related to that provided under the Early Release Scheme.

4.       The concept of a ‘qualifying offence’ under the Early Release Scheme (Northern Ireland (Sentences) Act 1998, s 3(7)) relies on whether the offence was a ‘scheduled offence’ under the Northern Ireland (Emergency Provisions) Acts. This is in reference to a list of specified offences (including murder, firearms, explosives offences etc) listed in a ‘schedule’ to such acts, provided the offence in question had not been certified as not being conflict-related through a certificate issued by the Attorney General. 

5.       Under the current Bill (as introduced) schedule 11 makes amendments to the Early Release Scheme, to inter alia, close a gap whereby conflict-related offences which occurred pre-1973 fell outside its scope on a technicality. In order to do this the Bill continues to rely on specified offences that would have been in the schedule with the Director of Public Prosecutions now empowered to differentiate as to whether the offence in question for which early release is sought is or is not conflict-related. As set out in the Explanatory Notes:

The existing early release scheme in the Sentences Act applies to persons convicted of “scheduled offences” between 8 August 1973 and 10 April 1998. “Scheduled offences” are those specified in the Northern Ireland (Emergency Powers) [sic] Act 1973 (“the 1973 Act”) and subsequent Northern Ireland Emergency Powers Acts. Paragraph 2 extends the early release scheme to offences committed on or after 1 January 1966 and before 8 August 1973 and which arose out of any conduct forming part of the Troubles. However, these offences cannot be “scheduled offences” because that concept was created by the 1973 Act. Subsection 7A is therefore inserted into the Sentences Act to enable offences committed prior to 8 August 1973 to be certified by the Director of Public Prosecutions for Northern Ireland as an offence which, had it been committed on 8 August 1973, would have been a scheduled offence within the meaning of the 1973 Act.[vi]

Requests of Immunity under the bill

6.       A different approach is taken elsewhere in the Bill including in relation to immunity requests. Requests for immunity under clause 18 of the Bill (as introduced HC) must relate to one or more “serious or connected Troubles-related offences.”

7.       Interpretation of these terms is found in clause 1(5).

8.       In addition to offences causing the death of a person the threshold of ‘serious’ is met if the offence ‘was committed by causing a person to suffer serious physical or mental harm.’ The term ‘serious physical or mental harm’ is defined (subsection 6) in relation to a series of physical injuries but also ‘severe psychiatric damage’. Rape and other sexual offences could meet this threshold.

9.       There is also the concept of a ‘connected’ Troubles-related offence. This covers an offence which ‘relates to’ ‘or is otherwise connected with’ a serious Troubles-related offence (whether committed by the same person or another). This broadens the scope of sexual offences covered by the immunity provisions. This is both in the sense of offences relating to act and omissions covering up of sexual offences that meet the ‘serious’ threshold, along with circumstances whereby offences in addition to the sexual offence, such as serious injuries, were also inflicted on a victim. 

10.   The third part of the definition relates to whether an offence is ‘Troubles-Related’. This is defined with reference to any criminal offence in relation to any of the UK jurisdictions which was ‘to any extent conduct forming part of the Troubles’ (emphasis added). ‘Forming part of the Troubles’ requires the conduct to have been between 1966 and 1998 and relating to ‘Northern Ireland Affairs’ (defined in relation to constitutional status or political/sectarian hostility). Sexual offences conducted by actors (non-state and state) using or abusing their capacity as participants in the conflict may have little difficulty in meeting this definition.

11.   There is a broader problem if Ministers rely on the assertion that sexual offences neither led to ‘serious’ harm nor were ‘Troubles-related’. Sexual violence was very much part of the Northern Ireland conflict. It would be problematic to suggest such gender-based violence against women involving abuses of power by actors in the conflict ‘does not count’ as part of the Troubles.

12.   If the intention of Ministers was to exclude sexual offences from the scope of the immunity provisions in the Bill, the present formulation is both problematic and does not reliably achieve this. It is unclear why if this was the intention, sexual offences were not expressly excluded from the scope of the relevant parts of the Bill.

13.   There is a second difficulty with reliance on the current formulation. This relates to other acts that constituted torture (that engage ECHR Article 3 and the UK’s broader international obligations) that inflicted the serious or physical harms enumerated in the Bill, also being eligible for grants of immunity.

Investigations and reviews into sexual offences under the Bill

14.   Section 33(1) of the Bill would ban the instigation or continuation of any criminal investigation into ‘any Troubles-related offence’ (emphasis added).

15.   This provision would therefore prevent any future police investigation into rape or other sexual offences that were Troubles-related. The Minister appears to have conceded this at Second Reading in stating that such offences could still be investigated if they were not Troubles-related.

16.   This provision does not affect the ‘reviews’ conducted by the ICRIR, yet this engages broader problems of the ICRIR including that:

a)      The ICRIR in our view is not capable of conducting effective, independent investigations in accordance with ECHR Article 3.

b)      The ICRIR is time-bound, after its conclusion there will be a de facto amnesty for Troubles-related sexual offences (and other acts torture), regardless of new evidence, as there can be no reviews or investigations at all.

c)      Where it is deemed to be the case that a particular Troubles-related sexual offence does not meet the definition in the bill of ‘serious harm’ this paradoxically means that the ICRIR (or anyone else) cannot conduct a review into it on the basis of a complaint from the victim (clause 10). The ICRIR, nor any other independent office holder, could not request or initiate the review either. The sole manner in which an ICRIR review could be conducted would be at request of the Secretary of State, this includes when those accused of the sexual offence were state actors, engaging the ECHR independence requirements.

Question of international involvement in transitional justice mechanisms (Q539)

17.   The second matter on which further information is sought relates to whether there is any precedent for international involvement in relation to appointments to legacy bodies. This is in light of the current Bill vesting the power to appoint all of the ICRIR Commissioners solely in the Secretary of State.

18.   It is first worth noting that given the bilateral nature of the peace process there is precedent for appointments not to be ‘UK only’ within the Northern Ireland peace process.

19.   The Independent International Commission on Decommissioning (IICD) was composed of Commissioners from Canada, Finland and the US, appointed by the British and Irish Governments, with additional appointments for inspections of former Finnish President Martti Ahtisaari and (the current South African President) Cyril Ramaphosa. In specific relation to legacy, under the Weston Park Agreement of 2001, the British and Irish Governments appointed former Canadian Supreme Court Judge Peter Cory to lead collusion inquiries. The appointments of these persons were therefore not undertaken unilaterally by the UK, given the bilateral role of the Irish Government.

20.   Following the Stormont House Agreement (SHA), the terms of Independent Commission on Information Retrieval (ICIR) were set out in a bilateral treaty with Ireland. Article 5 of the treaty related to the appointments to the ICIR of a Chairperson (who themselves may be of ‘international standing’), who would be appointed jointly by the Irish and British Governments, in consultation with the First and deputy First Ministers; and four other Commissioners, one appointed by the UK, another by Ireland, and two by the First and deputy First Ministers. Under the draft SHA legislation the Historical Investigations Unit Director was to be appointed by the NI Justice Minister on the recommendation of an appointments panel consisting of a number of distinct office holders, including one appointed by the Justice Minister with criminal investigation experience (not necessarily from the UK, leaving open the possibility, but not certainty, of international involvement).

21.   The approach of the current Bill in vesting powers of appointment in the UK Secretary of State alone therefore itself departs from these precedents.

22.   There are broader international precedents. For example, the Inter-American Human Rights Commission (IACHR)– an autonomous organ of the intergovernmental Organisation of American States has in recent years appointed, in agreements with the States in question, international experts to form part of investigatory mechanisms. This includes the appointment of the Expert Group investigating the disappearance of 43 students in Mexico in 2014 (Ayotzinapa case) who in recent months presented their findings.[vii] Another set of appointments relates to the violent events in Nicaragua between April 18th and May 30th, 2018,[viii] and a third to investigate human rights violations in Bolivia between September the 1st and December 31st of 2019.[ix] There are also examples from United Nations bodies, for example the UN Secretary General appointed the head Commissioner for the Historical Clarification Commission of Guatemala.[x]

23.   Whilst there are other examples hopefully this can highlight that there are precedents for international involvement in appointments of such mechanisms.

 

June 2022

 


[i] Model Bill Team Initial Response to NI Troubles (Legacy and Reconciliation) Bill, page 16. https://www.dealingwiththepastni.com/project-outputs/project-reports/model-bill-team-initial-response-to-ni-troubles-legacy-and-reconciliation-bill

[ii] Minister of State Northern Ireland Office Conor Burns: Hansard HC 24 May 2022 Column 253 “…on his point about sexual offences that we are very clear that any offences from 1 January 1966 to 10 April 1998 that are not troubles-related can still be investigated by the PSNI and police forces in Great Britain. Troubles-related offences that are not linked to a death or serious injury will not be investigated by this body and will not be subject to the immunity provisions. Only serious and connected troubles-related offences that took place between those dates and that are related to a death or serious injury will be eligible for immunity.”

[iii] As above.

[iv] https://www.politicshome.com/thehouse/article/we-must-protect-veterans-and-support-victims-and-survivors

[v] Northern Ireland Troubles (Legacy and Reconciliation) Bill European Convention on Human Rights Memorandum, Paragraph 13.

[vi] Northern Ireland Troubles (Legacy and Reconciliation) Bill, Explanatory Notes, paragraph 300.

[vii] https://www.theguardian.com/world/2022/mar/29/mexico-43-disappeared-students-military-report-iguala-ayotzinapa

[viii] https://gieinicaragua.org/en/#section00

[ix] https://gieibolivia.org/

[x] https://www.un.org/press/en/1999/19990301.guate.brf.html

 

 

 

Appendix:

MODEL BILL TEAM INITIAL RESPONSE TO NORTHERN IRELAND TROUBLES (LEGACY AND RECONCILIATION) BILL1

 

Contents

Executive Summary ............................................................................................................................... 2

Model Bill Team Initial Response to Northern Ireland Troubles (Legacy and Reconciliation) (NITLR) Bill ... 5

Introduction .......................................................................................................................................... 5

The NITLR bill is in breach of the Good Friday Agreement and runs contrary to the devolution of policing and justice to Northern Ireland ............................................................................................... 6

Throughout the spine of the NITLR Bill there is a clear intent to exercise UK governmental control over dealing with the past in Northern Ireland .................................................................................... 7

Legacy civil actions and inquests – are the current mechanisms working too well? ............................ 8

Inquest as a route to information recovery .......................................................................................... 9

Civil actions as route to reparations and information recovery ......................................................... 10

The Independent Commission for Reconciliation and Information Recovery (ICRIR) – an end to meaningful investigations? ................................................................................................................. 11

The ICRIR caseload .............................................................................................................................. 12

Composition and resourcing of the ICRIR ........................................................................................... 13

Powers, reviews, and the lack of investigations: A de facto amnesty without the political opprobrium? ....................................................................................................................................... 13

The ‘Products’ – The ICRIR Reports ..................................................................................................... 15

The Conditional Immunity Scheme .....................................................................................................15

Immunity must be granted on the basis of a subjective test ............................................................. 15

Which crimes are eligible? Would crimes of sexual violence be ineligible? ....................................... 16

Are both state and non-state actors eligible to apply for conditional immunity? ............................. 16

Will victims and survivors be made aware of successful application for immunity in their particular case? ................................................................................................................................................... 17

These immunity provisions are unlikely to be found to be in compliance with the ECHR ................. 18

Oral History, Memorialisation and Academic Research ......................................................................18

Prominence in New Proposals Linked to Justification for Immunity .................................................. 18

Independence of the ‘Designated Persons’ Appointed to Take Forward this Programme of Work .. 19

Organic Link to Work of ICRIR ............................................................................................................. 20

Official History of the Troubles ........................................................................................................... 20

A Missed Opportunity ......................................................................................................................... 21

Conclusion ............................................................................................................................................21 

 

Executive Summary

 

 

Model Bill Team Initial Response to Northern Ireland Troubles (Legacy and Reconciliation) (NITLR) Bill1

 

Introduction

 

The NITLR bill is in breach of the Good Friday Agreement and runs contrary to the devolution of policing and justice to Northern Ireland

 

Throughout the spine of the NITLR Bill there is a clear intent to exercise UK governmental control over dealing with the past in Northern Ireland

 

 

Legacy civil actions and inquests – are the current mechanisms working too well?

 

 

Inquest as a route to information recovery

 

Civil actions as route to reparations and information recovery

 

 

The Independent Commission for Reconciliation and Information Recovery (ICRIR) – an end to meaningful investigations?

 

 

The ICRIR caseload

 

 

Composition and resourcing of the ICRIR

 

 

Powers, reviews, and the lack of investigations: A de facto amnesty without the political opprobrium?

 

 

The ‘Products’ – The ICRIR Reports

 

 

The Conditional Immunity Scheme

 

Immunity must be granted on the basis of a subjective test

 

Which crimes are eligible? Would crimes of sexual violence be ineligible?

 

Are both state and non-state actors eligible to apply for conditional immunity?

 

 

Will victims and survivors be made aware of successful application for immunity in their particular case?

 

These immunity provisions are unlikely to be found to be in compliance with the ECHR

 

Oral History, Memorialisation and Academic Research

 

 

Prominence in New Proposals Linked to Justification for Immunity

 

 

 

Independence of the ‘Designated Persons’ Appointed to Take Forward this Programme of Work

 

 

Organic Link to Work of ICRIR

 

 

Official History of the Troubles

 

 

A Missed Opportunity

 

 

 

Conclusion

 

 

1 See https://bills.parliament.uk/bills/3160/publications

2 See further Dealing with the Past in Northern Ireland (dealingwiththepastni.com). The team consists of Professor Kieran McEvoy, Professor Louise Mallinder and Dr Anna Bryson (Queen’s University Belfast, School of Law & Senator George J. Mitchell Institute for Global Peace, Security and Justice) and Daniel Holder, Brian Gormally and Gemma McKeown (all Committee on the Administration of Justice). We would also like to thank Órlaith McEvoy and Anurag Deb for their research assistance which informed part of this report.

3 https://www.gov.uk/government/publications/the-belfast-agreement This is what occurred with regard to the reform of abortion law in Northern Ireland after the Northern Ireland Human Rights Commission successfully argued that the failure by the Northern Ireland Assembly to agree arrangements for the provision of abortion services had rendered the UK government in breach of its international legal obligations. However, in this instance, as argued below, the effect of the UK government’s intervention will itself be in breach of binding international and UK legal obligations.

4 https://bills.parliament.uk/bills/3160/publications

5 https://bills.parliament.uk/bills/3160/publications

6 Draft Northern Ireland (Stormont House Agreement) Bill 2018, Schedule 2, Part 1.

7 https://www.gov.uk/government/publications/the-stormont-house-agreement

8 HMIC (2013) Inspection of the Police Service of Northern Ireland Historical Enquiries Team. Available at https://www.justiceinspectorates.gov.uk/hmicfrs/publications/hmic-inspection-of-the-historical-enquiries-team Belfast Telegraph (3 July 2013) ‘Army Killings to be Re-examined After Troubles Murder Probe Criticised’

9 Paragraph 8, Committee of Ministers’ Decision in the McKerr Group of Cases v UK, 1428th meeting, 8-9 March 2022, https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=0900001680a5c3e2

10 https://www.judiciaryni.uk/legacy-litigation

11 https://www.judiciaryni.uk/sites/judiciary/files/media-files/Press%20Release%20-%20Legacy%20Inquests%20-%20Year%203%20Listings%20-%20220322.pdf

12 https://www.judiciaryni.uk/sites/judiciary/files/media-files/Press%20Release%20-%20Presiding%20Coroner%20Case%20Management%20Reviews%20-%20240222.pdf

13 Under s 14 Coroners Act (Northern Ireland) 1959, https://www.legislation.gov.uk/apni/1959/15/section/14 As of August 2021, the Attorney General had to date referred 32 inquests into 54 deaths (information provided by the Legacy Inquest Unit).

14 Sean Doran QC, Counsel for the Coroner quoted in Belfast Telegraph, 20th November 2020 ‘Naming IRA men allegedly Involved in Kingsmill Massacre Would Help Uncover Any Collusion, Court Told.’

15 https://www.gov.uk/government/news/secretary-of-state-for-northern-ireland-to-outline-way-forward-to-address-the-legacy-of-the-troubles

16 https://www.bbc.co.uk/news/uk-northern-ireland-59641564

17 Sir George Quigley (2007) Recruiting People with Conflict Related Convictions, Employers Guidance. Office of the First Minister and Deputy First Minister.

18 As the Operation Banner review notes, only a dozen or so serious cases involving Army personnel killing or injuring others came to court during the 30 years of the Troubles. In relation to operational shootings the report cites 4 convictions for murder, one of which was overturned on retrial. These figures to not appear to include members of the Ulster Defence Regiment. British Army (2006) An Analysis of Military Operations in Northern Ireland. Available http://www.vilaweb.cat/media/attach/vwedts/docs/op_banner_analysis_released.pdf p. 46, para 431.

19 Model Bill Team Response to the UK Government Command Paper on Legacy in NI | Dealing with the Past NI

20 Northern Ireland Troubles (Legacy and Reconciliation) Bill European Convention on Human Rights Memorandum, Clauses 43 – 47.

21 See further https://eamonnmallie.com/2021/07/nio-legacy-proposals-soft-options-will-not-suffice-by-dr-anna-bryson/indepPRIN

22 See further http://rightsni.org/2015/10/the-stormont-house-oral-history-archive-proni-and-the-meaning-of-independence-guest-post-by-dr-anna-bryson/ and https://eamonnmallie.com/2021/07/nio-legacy-proposals-soft-options-will-not-suffice-by-dr-anna-bryson/indepPRIN

23 See https://www.belfasttelegraph.co.uk/news/northern-ireland/british-government-to-commission-official-history-of-troubles-under-legacy-plans-41050099.html; https://news.sky.com/story/uk-govt-to-bring-forward-legislation-on-the-legacy-of-the-troubles-in-northern-ireland-12614804

24 See https://www.telegraph.co.uk/politics/2021/11/13/ministers-plan-official-account-troubles-amid-fears-ira-supporters/

25 https://talks.ox.ac.uk/talks/id/5c672e56-1090-44c8-9562-b435be3d6311/ . One of the authors of this report, Dr Anna Bryson, presented at this Oxford Irish History Seminar on 23 February 2022.