Written evidence from the Model Bill Team (NIB0008)

Introduction

This response to the Committee’s Call for Evidence was prepared by the ‘Model Bill Team’. Since 2013, this team has produced a range of technical briefings and reports designed to help inform public debates on dealing with the past. Members of the team have also given written and oral evidence to the US Congress (2015 and 2022), the Westminster Defence Select Committee (2017), the Joint Oireachtas Committee on the Implementation of the Good Friday Agreement (2018) and the Westminster Northern Ireland Affairs Committee (2019, 2021, 2022).[1]

To set the human rights context to these proposals, we begin with a brief summary of the opinions of UN Special Rapporteurs and the Council of Europe Human Rights Commissioner on the UK government’s July 2021 Command Paper (the policy underpinning of the current Bill). The Bill has made only minor changes to the main thrust of that Command Paper.

A joint statement was made on the 10 August 2021 by the Special Rapporteur on truth, justice and reparation, Mr. Fabián Salvioli, alongside Mr. Morris Tidball-Binz, Special Rapporteur on extrajudicial, summary or arbitrary executions, expressing “serious concern about the UK Government's plan to ban all prosecutions, impede investigations, and preclude victims' civil claims in connection with "the Troubles" in Northern Ireland, which would effectively institute a de-facto amnesty and blanket impunity for the grave human rights violations committed during that period.” The Special Rapporteurs went on to say that the UK proposals would thwart victims’ right to truth and to an effective remedy and place the UK “in flagrant violation of its international obligations".[2] This concern was echoed in the subsequent report by Mr Salvioli to the Human Rights Council.[3]

In September 2021, the Council of Europe Commissioner for Human Rights, Dunja Mijatović, published correspondence to the UK in which she warned that the proposals under the Command Paper “would undermine human rights protections and would cut off avenues to justice for victims and their families”. She further stated that “If adopted, the plan would lead to impunity and cannot be the foundation on which transitional justice is built.”[4] The correspondence raises concerns about the conflict with the UK obligations under the ECHR and the Command Paper proposals which include the introduction of: “a statute of limitations for all Troubles-related crimes, which would put an end to all ongoing and any future attempts at prosecution. This is accompanied by a statutory bar on the Police Service of Northern Ireland (PSNI) and Police Ombudsman to investigate Troubles-related incidents, as well as further steps to end all judicial activity in this area with regard to current and future criminal and civil cases and inquests.”[5]

The Commissioner states that ECHR compliance is “particularly endangered by the proposed shutting down of the above-mentioned avenues, and their replacement with an information recovery body with limited investigatory powers that would fall short of the requirements under the ECHR, and which would mainly carry out investigations on request of next of kin.”[6]

Responses Organised under Terms of Reference

Reviews of deaths:

The procedural obligation under Articles 2 and 3 ECHR requires that investigations into deaths and serious injuries must: be independent, effective, reasonably prompt and expeditious, include a sufficient element of public scrutiny, adequately involve the next-of-kin, and be initiated by the State rather than solely dependent on being raised by the next-of-kin. Will the reviews of cases undertaken by the new ICRIR meet these requirements?

We should first note that the government previously produced draft legislation in 2018 to implement the Stormont House Agreement (2014) in which the UK government and the local Northern Ireland parties all agreed to a range of mechanisms being established including Article 2 compliant investigations into conflict related deaths. In the current bill the word ‘investigation’ has been replaced at almost every instance with the word ‘review’.

The Model Bill Team considers that the proposed Independent Commission for Reconciliation and Information Recovery (ICRIR) will not meet the procedural obligation under Articles 2 and 3 ECHR due to:

-          the limitations on the caseload of the ICRIR

-          the absence of an obligation on the state to undertake investigations

-          the lack of powers to carry out effective investigations

-          its lack of independence

-          the omission of provisions for public scrutiny of its operations

-          the limited role for families of victims

Limitations to the ICRIR Caseload: Judicial, policing and oversight processes in Northern Ireland have already established a body of cases whereby Article 2 ECHR-compliant investigations have been adjudged to not having taken place. Such cases were to form, alongside outstanding cases from the PSNI’s Historical Enquiries Team and Police Ombudsman, the baseline caseload of the proposed Stormont House (Historical Investigations Unit) HIU. These cases are dispensed with and do not appear to be in the presumptive caseload of the ICRIR.

The ICRIR’s lack of effective investigative powers: The functions set out in the bill for the ICRIR expressly restrict its remit to conducting ‘reviews’ rather than ‘investigations’ (Clause 4). An ICRIR Commissioner will decide on the steps to ‘review the case referred to it’ (Clause 13). However, the ICRIR is debarred from duplicating any aspect of a previous investigation, unless the ICRIR can make a case that it is ‘necessary’ to do so (Clause 13(5)). Such limitation provisions in existing statutes have had the effect of unduly restricting some current legacy investigations, even when previous investigations were not Article 2 compliant.

By contrast, under the Stormont House Agreement, the HIU was to conduct Article 2 compliant investigations. The HIU Director was obliged to issue a statement on how the investigatory function would be exercised in a manner that ensured Article 2 ECHR and other human rights obligations were complied with. This is dispensed with for the ICRIR.

A key safeguard to date against limited or ‘sham’ investigations has been the ability of families to judicially review contested investigations for Article 2 compliance. It would be a matter of deep concern if the government moves to constrain the ability of families to challenge ICRIR reviews. Reviews in the Northern Ireland legacy context have tended to refer to inquiries limited to a review of papers or limited testimony evidence that does not involve the use of police investigative powers.

The Bill does provide that ICRIR officers can be designated as having police powers. It is unclear however when or how such powers are to be exercised. Police powers are exercised in relation to criminal investigations. It is not clear if it is ever intended for the ICRIR to conduct such investigations. In cases where a person has been granted immunity from prosecution it is not clear if a criminal investigation could in any case be conducted. In short, we do not consider that the ICRIR has the powers to conduct effective investigations.

Lack of obligation on the state to investigate on its own initiative: There is no provision whereby the ICRIR Commissioners can on their own initiative review cases within their remit. Instead, certain family members can request ‘reviews’ into deaths along with the Secretary of State (SOSNI) and the ICRIR has the discretion to open reviews into conditional immunity requests. Along with Coroners in certain circumstances the only independent officer able to request ‘reviews’ into deaths is the Attorney General for Northern Ireland, albeit this is qualified by a veto on national security grounds by the Advocate General. By contrast, the SOSNI is granted broad powers that could heavily shape the case load of the ICRIR despite clear conflicts of interest. These measures do not discharge the obligation on the state to initiate effective investigations in all cases where Articles 2 or 3 might be engaged. On the contrary they give power to a politician to pick and choose when ‘reviews’ might be initiated, unfettered by any objective criteria.

The Bill also contains a cut-off date of five years for ICRIR reviews. Such cut off represents a de facto amnesty after that period. Unlike the HIU agreed to in the SHA, there is no provision in the bill relating to the prioritisation of cases. The ICRIR therefore has no power to otherwise open cases nor a duty to investigate those where outstanding ECHR obligations remain.

Lack of independence: Throughout the spine of this Bill there is a clear effort on the part of the UK government to maximise the capacity of the government to interfere with the operation of the proposed legacy mechanisms. For example, the Bill provides for direct government control over the establishment and operation of all its proposed mechanisms. The Secretary of State for Northern Ireland (SOSNI) will appoint the personnel, make regulations governing its work, issue “guidance” on the immunity process, can initiate reviews, direct a response to historical findings and control the overall budget. The independence of the ICRIR is also undermined by the requirement for some officers to have NI policing experience, thus risking a lack of practical independence from some possible perpetrators.

Lack of public scrutiny: There is no provision for any independent oversight of the ICRIR nor any other form of ensuring transparency in its operations.

Limited role for victims: Victims and their families can initiate ‘reviews’ and ask particular questions, but that may be the extent of their involvement. There is no requirement for continuing consultation with families and, while the HIU bill had specific provisions that each family report ‘must be as comprehensive as possible’ there is no such provision in the current bill as to what ICRIR reports to families should contain. As discussed further below, with regard to the process for granting immunity, there is no provision whereby family members will be informed in Reports whether a suspect or other individual connected to their case has been granted immunity.

The ICRIR will be limited to carrying out reviews of Troubles-related deaths and “other harmful conduct” (clause 2(4)(b)). “Other harmful conduct” is defined as “any conduct forming part of the Troubles which caused a person to suffer physical or mental harm of any kind (excluding death)” (clause 1(4)). “Serious physical or mental harm” is defined in clause 1(6) as a list of 8 conditions. Is the definition of “serious physical or mental harm” adequate? Does it risk excluding reviews of cases which would concern treatment amounting to a violation of Article 3 ECHR and UNCAT? If so, what are the implications for the UK’s compliance with the procedural obligations under Article 3 ECHR and UNCAT?

The definition of harm in clause 1(6)a clearly does not include all harm that could be caused by torture or inhuman or degrading conduct. The definitive criterion for inclusion in any investigative process should be whether the investigative obligation has already been discharged or not. If it has not, there is an extant human rights violation that should be remedied. Unfortunately, even if a case were to be included in the caseload of the ICRIR, its lack of ability to carry out an independent and effective investigation would mean that the procedural obligation has not been satisfied.

The Conditional immunity scheme:

The UK is under a duty to investigate and punish serious crimes and grave breaches of fundamental human rights, such as unlawful killings and torture. Is the conditional immunity scheme compliant with this duty? If not, does it constitute a justified exception to this duty? For example, does the pursuit of truth and reconciliation provide a legal basis for the proposed conditional immunity scheme?

The government memorandum on compliance with the European Convention on Human Rights states that the ICRIR review process proposed in the legislation will comply ‘with most’ of the requirements of Article 2 procedural obligations. Where the scheme falls short of these obligations, the memorandum refers to ECHR case law on amnesties to raise the possibility that exceptions to procedural obligations may be permissible in a context of an amnesty that promotes truth recovery and reconciliation. However, as detailed above, such flexibility can only occur on the context of investigations which are fully compliant with Article 2 of the ECHR and not the reviews envisaged in this Bill. Moreover, the possibility for the ICRIR to grant immunity without adequately corroborating the information received, together with the opacity regarding how any information that is received will be handled, made available and benefit victims and society in terms of information recovery, means that there is very little prospect that it would be found to be compatible with the ECHR.

Specifically, the Bill imposes a duty wherein the relevant panel established by the ICRIR must grant immunity from prosecution when (A) a person has requested such immunity, (B) where the panel is satisfied that the person has ‘provided an account which is true to the best of their knowledge and belief’ and (C) where the panel is satisfied the conduct described would appear to expose the person to prosecution for one or more serious troubles-related offences. Criterion B is of course central to the extent to which the immunity scheme will be able to contribute to information recovery. A few elements cumulatively raise concerns on the extent to which this would be effective.

First, Clause 18(4) sets out that the applicant’s account could consist entirely of information which they have previously provided to the ICRIR or other legacy processes.

Second, immunity can be granted in the absence of a family request for a review. This means that immunity can be granted even from the information recovered will not be of direct benefit to any family.

Third, the ICRIR has discretion in deciding whether to open a review into the subject matter of an immunity request. Clause 20(5) explains that when the ICRIR decides not to open a review ‘that does not prevent the immunity requests panel from forming a view on the truth of an account given by P.’ However, subsection (4) continues ‘in order to form a view on the truth of P’s account, the immunity requests panel is not required to seek information from a person other than P’.

Fourthly, clause 13 on the conduct of reviews does not explicitly require the ICRIR when undertaking reviews or producing reports to take into account any available information provided in immunity requests. However, neither does it preclude it from doing so.

The limited European Court of Human Rights (ECtHR) jurisprudence on amnesties does give an indication of the standards required in order for a grant of immunity to be considered legitimate. These are that it should be necessary (e.g., to prevent a return to conflict) and that it should contribute to efforts to ensure truth and reconciliation including through effective investigations. Given that the Northern Ireland conflict ended in 1998 for most intents and purposes and the fact that this Bill appears specifically designed to close down effective investigations as guaranteed by Article 2 and Article 3 of the ECHR as well as civil remedies, it is highly unlikely to meet these standards and to thus be deemed lawful.

Is there a risk that this scheme may result in unjustifiable discrimination against persons with certain affiliations or who were engaged in certain types of conduct, which is prohibited by Article 14 ECHR?

Powers are vested in SOSNI alone under clause 10(2) to trigger ICRIR reviews into any ‘harmful conduct’ during the Troubles with no requirement that it should have been serious. This leaves open the possibility of arbitrary decisions by SOSNI to order the pursuit of certain individuals or members of organisations who may have been particularly troublesome to the UK state. Whether any such exercise of powers would engage Article 14 ECHR would depend on the particular cases but the existence of an unfettered power opens up that possibility.

What are the implications of this legislation for the McKerr group which remain under the supervision of the Committee of Ministers?

The implications are that these cases would fail to get the Article 2 compliant resolution for which they have been waiting since judgement by the ECtHR in 2001.

Cessation of proceedings:

Do the prohibitions and restrictions which apply to police investigations, criminal proceedings, civil proceedings, and inquests (inquiries in Scotland) arising out of the Troubles comply with human rights law and, in particular, the requirements of Article 2, Article 3, and Article 6 ECHR?

The existing mechanisms for dealing with the past have been weakened, largely through government refusal to implement the judgements of the European Court of Human Rights and refusal and delays in the provision of information by state agencies. However, given the structure of the Bill, it is reasonable to ask whether part of the reason for introducing it is because existing mechanisms are working too well.

Recent inquests have provided proof of innocence of victims of state violence and much increased knowledge about the circumstances of deaths. A plan by the then Lord Chief Justice to deal with all outstanding legacy inquests in five years, delayed though it was by government refusal to resource it, is now working. Those promised inquests deserve their chance for human rights compliant, legal mechanisms to discover the truth. Civil actions, independent police investigations and the historic investigations of the Police Ombudsman can also provide victims with information and redress. The Bill would end all these processes at a time when they are increasingly delivering. In the absence of a credible alternative, the ending of all these various recourses to law will involve a clear breach of the strictures of international human rights law.

The focus in these discussions is properly on the victims. However, it would appear from the current bill that not only would a victim’s right to an Article 2 or Article 3 compliant investigation be impinged by the ‘reviews’ being proposed but also by the proposed conditional immunity scheme. For example, it is not clear that that any information or indeed the identity of any person granted immunity would be made public including to affected victims in the relevant report which will be provided to victims on their case.

Early release of prisoners:

The ‘early release of prisoners scheme’ will be amended to reduce the minimum time a person convicted of a relevant offence must spend serving their sentence before being eligible for release on license to zero. Is this amendment compliant with the UK’s procedural obligations under Articles 2 and 3 ECHR?

It is our understanding that neither Article 2 or 3 implies a particular punishment for a perpetrator identified through a compliant investigative process. However, any discriminatory application of reduced sentences (e.g. between state and non-state actors), would be clearly unlawful.

Does this Bill raise any other human rights concerns?

Incorporation of the European Convention of Human Rights (ECHR) is a fundamental aspect of the Good Friday Agreement (GFA). The Agreement commits to ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts, and remedies for breach of the convention’. The Bill will directly limit the ability of people in Northern Ireland to challenge alleged breaches of the ECHR in either the Northern Ireland Coronial Courts (after May 2023) or the Northern Ireland civil courts (after 17 May 2022, the date of the Bill’s first reading). Paragraph 32 of the Good Friday Agreement (GFA) stipulates that the role of the Secretary of State for Northern Ireland is ‘to remain responsible for NIO matters not devolved to the Assembly, subject to regular consultation with the Assembly and Ministers.’ Paragraph 33 (b) stipulates that the role of the Westminster parliament is ‘to legislate as necessary to ensure that the United Kingdom’s international obligations are met in respect of Northern Ireland.’ The GFA also committed the UK government to ‘devolve policing and justice issues’ to Northern Ireland, as indeed occurred in 2010. This Bill represents a clear interference in the ECHR rights of Northern Ireland citizens guaranteed under the GFA and a direct undermining of the devolution of policing and justice, again undermining the GFA.

27/06/2022

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