Written evidence submitted by Professor Neophytos Loizides, Dr Laura Sudulich,

Professor Feargal Cochrane, Professor Edward Morgan-Jones, Dr Raluca Popp, Professor Charis Psaltis and Dr Aimee Smith relating to The Government’s new approach to addressing the legacy of the past in Northern Ireland inquiry

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Summary

1. We are a team of researchers working on citizens’ preferences and inclusion in peace processes collaborating on projects funded by the United States Institute of Peace, the Open Research Area 7 Inclusive Peace project (ESRC), and the University of Kent.[1] Our team has extensive expertise concerning the development of the peace process in Northern Ireland and how that relates to other international contexts. Our submission draws on this experience to explain the reasons why more inclusive, transparent and accountable processes are necessary for victims of violence and the wider legitimacy of political settlements.

2. Our response answers the committees call for evidence on the following: whether the Government’s new approach meets the needs of victims, survivors and their families; steps the government should take to enhance the operation and credibility of existing structures designed to facilitate effective reconciliation, information recovery and wider goals around victim support; and steps the government should take to introduce an effective process for recording a history of the Troubles.

3. We are supportive of the government’s attempt to significantly amend the previous legalisation. This lacked credibility across the political spectrum in Northern Ireland, and represented a denial of justice for victims and survivors and the wider community. To that end, we suggest that the reform of previous Legacy and Reconciliation arrangements needs to provide a ‘root and branch’ change, to enhance public confidence in any new legislation.

4. We are aware of the need to balance legislative reform with the need for timely action. However, we believe that work needs to be done to determine a consensus among key stakeholder groups. In addition, we are of the view that a return to key provisions within the 2014 Stormont House Agreement (SHA)[2] would go some way towards meeting the objectives that have been outlined by the Secretary of State and are, in our view, essential for sustainable institutions to be developed.

5. We recommend that reform should be based on the following principles relating to inclusivity, transparency and accountability:

5.1. That victims’ families and other stakeholder groups across civic society have a central and meaningful role in the changes that are proposed.

5.2. That government steps away from political control of these institutions, with an adequate firewall put in place to provide public confidence in such bodies and in their operational independence.

5.3. That any replacement to the legalisation is compliant with, and rooted within, a clear legal framework, especially the European Convention on Human Rights (ECHR).

5.4. That sufficient flex is provided in any new institutions to allow them to evolve over time as circumstances change and that such a process involves victim’s families, survivors and relevant civic organisations.

5.5. That a twin track process of informal information-gathering via trusted intermediaries and civic mediators, should parallel the institutions that focus on the formal legal process.

5.6. That the reforms include a robust cross-border dimension along the lines set out in the Stormont House Agreement and in partnership with the government of Ireland.

6. Our conclusions are based on related cases and comparative evidence on the adoptability of similar legislation elsewhere, most prominently in Cyprus, where team members have been involved in advising a civil society backed proposal for a truth and reconciliation commission for missing persons.[3]

Main submission

1.     Introduction

1.1.         We are a team of researchers working on citizens’ preferences and inclusion in peace processes. We have written extensively (collectively and individually) about the incompleteness of reconciliation attempts in Northern Ireland, how it relates to other international contexts, and why more inclusive, transparent and accountable processes are necessary for victims of violence and the wider legitimacy of political settlements.[4] As the academic expertise of the authors lies in political science, conflict analysis, social psychology and institution building in divided societies, this submission focuses primarily on the political and psychological aspects of the issues outlined in this call for evidence, rather than on the legal dimensions.

1.2.         Our response centres firstly on the key principles that should underpin any approach to reconciliation, truth recovery and collective efforts at peacebuilding: the principles of inclusivity, transparency and accountability. Secondly, we report on how these principles can inform the practical processes, institutions and mechanisms that are listed in this call for evidence. Thirdly, we present a different way of assessing the public mood for change, based on a method that models how voters are prepared to trade-off between different packages of policy options, rather than traditional opinion polling on individual issues.

1.3.         Our response here is informed by research we have carried out on public opinion in post-conflict societies, including Northern Ireland, that we believe can assist the task of replacing and reforming the legislation associated with the Northern Ireland Troubles (Legacy and Reconciliation Act) 2023, hereafter referred to as the Legacy Act. This submission explains how developing a more nuanced understanding of how voters think about difficult policy trade-offs, could help make progress across the complex and sensitive range of issues that are flagged up by this call for evidence.[5]

2. Whether the Government’s new approach meets the needs of victims, survivors and their families

2.1.         We are broadly supportive of the attempts being made by the government to replace, or significantly amend, the previous Legacy Act.[6] Legal scholars and other stakeholders have argued convincingly that the closing down of ongoing criminal investigations, inquests and other investigations of Troubles-related offences, represented the denial of justice for victims of violence and the wider community in Northern Ireland.[7] Drawing such an arbitrary line across the past  and providing conditional amnesties and protection from prosecution to those responsible for potential offences, was problematic in principle and proved to be unsustainable in practice. Victim support groups have criticized the previous government’s legalisation as it was created without adequate consultation, did not work in the best interests of victims and survivors and was more about obscuring the past than pursuing truth recovery, justice or acknowledgement for victims and survivors.[8]

2.2.         The Legacy Act was also condemned by the United Nations, the Council of Europe and by the US Congress, and was clearly not fit for purpose. It requires a thorough replacement that is in full compliance with the European Convention on Human Rights (ECHR) and can command the confidence of key stakeholder groups, including the main political parties, human rights organisations, and the families of victims and survivors.

2.3.         We welcome the current government’s commitment to achieving this and the public comments of the Northern Ireland Secretary of State Hilary Benn in this respect represents an important first step.[9]

2.4.         However, we recognise that the devil will very much be in the detail of what the Legacy Act and its associated institutions is replaced by, and the extent to which these reforms are victim-centred, inclusive, based on sound legal principles and prove capable of delivering redress in a timely manner.

2.5.         More specifically, the Secretary of State has claimed that the government recognises there is scepticism about the ICRIR and that ‘reforms are needed to secure the confidence of families’.[10]  However, it remains unclear what has been done to consult key stakeholders, including the main political parties, human rights organisations, victim support groups and families themselves, about the extent of the reforms that are envisaged, or how these are being shaped by them. Our view is that failure to adequately include key stakeholders in the reform of this legislation and associated institutions, risks both the credibility and sustainability of any policy changes that are considered. 

2.6.         It is also inferred by the Secretary of State that he will bring forward legislation to ensure that the Commission is; ‘in specific circumstances, able to hold public hearings, take sworn evidence from individuals, and ensure families have effective representation.’[11] However, our recommendation is that greater transparency is required before we can be confident that the circumstances envisaged are broad enough, the public hearings are adequately resourced, the families are appropriately represented and the legal processes are sufficiently robust. More work needs to be done to determine what key stakeholders want from these processes and a consensus needs to be developed around the policy changes that are brought forwards, with key stakeholder groups (victim support groups, civil society groups and the wider Northern Irish public) being the architects, rather than recipients of reform.[12]

2.7.         Despite the public statements made by the Secretary of State about the intention to replace the Legacy Act, it is unclear if the government has settled on a set of overarching principles that will drive its reforms forwards, or whether it is prepared to put victims and their families at the centre of policymaking on this issue, even if that creates short term difficulties for the government itself.

2.8.         There are already early signals of concern that the government may seek to influence these policies to suit broader political pressures in Britain, rather than non-partisan legal processes within Northern Ireland. The exchange in the House of Commons between the Prime Minister and Leader of the Opposition on 15 January 2025[13] over the concerns that former Sinn Féin President Gerry Adams would be entitled to receive financial compensation under the government’s reforms, indicates the inherent risks in processes relating to the truth recovery and reconciliation process in Northern Ireland becoming destabilised by wider political dynamics. In response to a report by the Policy Exchange think tank opposing the government’s replacement of the Legacy Act, [14] and the subsequent sensationalist headlines in the popular media, the Prime Minister responded by saying that he would seek to prevent such an outcome from happening: ‘We’re working on a draft remedial order and replacement legislation, and we will look at every conceivable way to prevent these types of cases claiming damages.’[15] The Secretary of State himself commented that ‘no one wanted to see’ Gerry Adams receiving compensation linked to the overturning of convictions for two attempted prison breaks following his internment without trial in 1973.[16] While we accept that many would agree with this view, we think it is reasonable to believe that some would not. The Secretary of State’s attempt to intervene in the legal process and single out one individual as being unworthy of compensation, was a subjective political motivation that sits in tension with his claims to seek an objective and accountable legal process that can command support across the community.

2.9.         We recognise that there will be a variety of views concerning the legitimacy of this particular case, but our point here is that regardless of the target, this demonstrates a tension at the heart of the matter. The government clearly still wants to retain political control and intervene on outcomes when it is expedient to do so. At the same time, it claims that it wants to make these institutions victim-centred and more accountable to the community. We suggest that more robust accountability procedures and firewalls between political decision-makers and legal processes are required in any reforms that are brought forwards.

2.10.    On a more academic point, we accept that reconciliation is a complex area and that it would be difficult for any policy or institution to fully meet the needs of all victims. So, our recommendation would be that the benchmark on this should be to devise reforms that can optimise the needs of as many victims as possible. This should be viewed as a dynamic process that accelerates as confidence grows in the processes that are established.

2.11.    Commissions and other processes that seek to address post-conflict justice issues and legacies of violence are commonly advocated as one important means for enabling post-conflict reconstruction. However, studies have shown that they can often fail in their objectives of peacebuilding and reconciliation and in some cases; ‘these policies had harmful consequences for their intended beneficiaries, including re-traumatization and perceived “justice gaps” between victims’ preferred remedies and their actual outcomes.’[17] We recommend that any approach to designing mechanisms to enable societal recognition of the consequences and legacies of the conflict needs to bear in mind this patchy record of success. We would also caution that these processes inevitably impact upon individual victims and survivors differently, and in complex ways, but at the same time they are intended to play wider collective roles for societies moving out of conflict. We would suggest that these two dynamics are not always perfectly aligned and may exist in tension, or be perceived to do so.  We are aware of the need to balance legislative reform, public consultation and the setting up of new institutions, with the need for timely action. The Secretary of State has claimed that the advantage of retaining the ICRIR is that it is already up and running, staffed and operating. Replacing it would result in undue delays while new inquiries would have to start from scratch.[18]

2.12.    We agree that justice delayed is justice denied and that the families of victims are entitled to receive timely action, redress and recognition for the suffering that has taken place and is still ongoing. However, we believe that more work needs to be done to determine public preferences on this issue and to develop a consensus among key stakeholder groups on the balance between speed of action and the institutions and operating practices that are put in place. Ultimately, further public consultation needs to be predicated on putting victims’ and their families at the centre of any reforms undertaken.

2.13.    We would also recommend returning to the SHA model of providing a twin-track approach for victims and survivors, where families could pursue either an independent investigative legal process leading to potential prosecutions, or alternatively, an information-recovery process that would be separate from any legal redress. The latter should be instituted on a cross-border basis and could be established quickly in consultation with the key stakeholder groups.

2.14.    We believe that a robust cross border dimension is essential and would be in the interests of victims’ families in the truth recovery process. This also has potential to secure wider political agreement, as indicated in the request from Gavin Robinson MP for full Irish government co-operation over the Omagh bombing investigation in recognition of the cross border dimensions of that atrocity.[19] We also believe that a clear cross-border process is in line with the wishes of the British and Irish governments and is in harmony with the broader ethos of the Belfast/Good Friday Agreement. All of these factors should overlap in terms of the functionality of the truth recovery process and the credibility of the structures that are put in place.

3. Steps the Government should take at an operational level to enhance the operation and credibility of the existing structures designed to facilitate effective reconciliation, information recovery and the wider goals around victim support and reconciliation

3.1.         Our comments in this section relate primarily to the question of reform of, and building trust in the ICRIR

3.2.         The key issue here relates to the future of the Independent Commission for Reconciliation and Information Recovery (ICRIR). We are not confident that the ICRIR can be reformed to the point that it can command credibility and legitimacy with victim’s families and across the political spectrum. It is likely to remain tarnished by its association with the previous legislation. We would therefore recommend that reform needs to be at a level where it would become unrecognisable from its existing form.

3.3.         Despite reassurances from the Secretary of State and from the Chief Commissioner of the ICRIR that it was ‘committed to achieving the unvarnished truth for all of the victims’ and that ‘it has the necessary legal powers to retrieve information even from the government or security agencies even if they wanted to prevent it,’[20] this has not been the widespread view among victim’s families and victim support organisations.

3.4.         We think this is an area that could benefit from engagement with key stakeholder groups with a commitment from the government to consider abolishing and replacing the current structure with a new one if it is unable to convince critics that their concerns have been met. This call for evidence appears to presuppose that the ICRIR can be reformed or revised, but we believe it should be open to a ‘root and branch’ replacement if victim’s families and other key stakeholders make a convincing case why that needs to be done. We take cognisance here of Sandra Peake’s view from the WAVE Trauma Centre, that the future of the ICRIR ‘really is a fundamental issue we have to get right.’[21] We would caution against rushing through new legislation without consideration of these fundamental issues to ensure that new institutions are credible and legitimate from the outset. Given the chequered history of attempts to provide justice for victims of political violence in Northern Ireland, another attempt to do so that is flawed at the design stage will inevitably fail, and may do more harm than good.

3.5.         It is also important to note that the role of the ICRIR and the extent to which it is reformed is not just a matter of concern for the UK government, or stakeholder groups within Northern Ireland. It also needs to garner support from the Irish government and other constituencies within the Irish Republic and within the ECHR. As the Committee on the Administration of Justice (CAJ) have pointed out, the previous Irish government questioned the independence of the ICRIR and called for substantive ‘root and branch’ reform in order that it can ensure compliance with the ECHR and gain public trust.[22]

3.6.         We appreciate that there are a range of views here across the political spectrum and that there will be sensitivities and disagreements surrounding the nature of any reforms that should be considered. We also acknowledge the Secretary of State’s view that keeping the ICRIR in place may be administratively simpler and could result in faster action for victims’ families. Nevertheless, we conclude that there is sufficient doubt in the capacity of a reformed ICRIR within key stakeholder groups, including victim’s families, esteemed human rights groups and across some political parties, to question its continued viability. In short, the question is whether the government’s approach to reform of the ICRIR is truly root and branch –or merely branch?

3.7.         Our view is therefore that the ICRIR remains tarnished by association with previous legislation – fatally so in the eyes of many. We are not convinced that a consensus exists across key stakeholder groups, and victim’s families especially, that the ICRIR is capable of being reformed sufficiently to provide it with the legal powers, the independence from government or the accountability mechanisms that will be needed to command confidence in its activities.

3.8.         As such, we bring to the attention of the committee the need to capture the preferences of those directly touched by the legislation: primarily victims’ families and survivors, but also Northern Irish citizens more generally. Identifying palatable compromises is paramount to successful reconciliation. As a result, we would favour a concentrated phase of public consultation being undertaken to determine whether a consensus can be reached on the future of the ICRIR. Examples of some of the forms this could take are Citizen’s Assemblies – which have been successful in gauging and understanding public preferences on referendum issues in the Republic of Ireland and elsewhere,[23] as well as the type of Structured Online Dialogues increasingly being used by governments and NGOs within the EU.[24]

3.9.         Our own work on public opinion surveys can provide some recommendations for potential process design in this area. Traditionally it has been difficult to understand public opinion about complex policy areas because traditional survey questions do not offer information about which element of a policy package attracts or repels support. Recent advances in the study of public opinion using ‘conjoint survey experiments’ can help to address this. These methods allow us to measure how important each element of a proposed policy package is to respondents and how far these different elements secure the support of the whole community. In addition we can measure the preferences of different communities in conflict, identifying spaces of divergence and agreement and, ultimately, enable us to identify possible solutions that can achieve maximum cross communal support.[25]

3.10.    An example of the development of this process is from our current work in Cyprus, where there are similar challenges to Northern Ireland (Truth vs Justice for missing persons). This work has involved a joint civil society initiative shared by two leading Greek and Turkish Cypriot figures with the knowledge of governments but fully independent of them. Civil society initiated a new proposal that was gradually communicated to stakeholders, winning their support, and then presented to the public for broader consultation. In addition to a process driven by civil society actors, we invited twelve international experts to introduce comparative findings and lessons learnt in a dedicated working group, including analysis of comparative cases.[26]

3.11.    This research has led to key ideas and recommendations being tested in public opinion surveys. Presentations to stakeholders and the public included both a longitudinal component on how respondents addressed the same questions over time, e.g. on truth commissions and amnesties, as well as an experimental component on attitudes towards the peace settlement using ‘conjoint survey experiments’.[27] These conjoint experiments have been useful in identifying the preferences of the two communities in Cyprus and overlaps across potential trade-offs that might be considered. [28]

3.12.    We think that this work we have done on public opinion in post-conflict societies can help in the current situation in Northern Ireland, by modelling possible policy options in a more nuanced way than other techniques can provide. We have already tested this method in Northern Ireland as part of our research on post-Brexit scenarios and highlighted the trade-offs to be negotiated that could make what is unacceptable in isolation, acceptable in association with other perceived benefits. Our 2020 research helped map areas of convergence and divergence among Unionist, Nationalist and non-aligned communities and potential landing zones for policy compromise.[29] We believe that this approach to assessing public preferences for difficult policy choices could be useful in the current context as well. A more granular understanding of public opinion using these recently developed methods, will enable the government to give agency to those impacted by the proposed legislation and help them to shape the design of the mechanisms with a better understanding of potential public support.

4. Steps the Government should take to introduce an effective process for recording a history of the Troubles

4.1.         Our comments in this section relate to the question of building a history of the Troubles

4.2.         We would wish to emphasise two points that we feel are germane to the committee’s deliberations. Firstly, it needs to be understood that constructing a historical narrative on the Troubles is an inherently political act rather than merely a technical exercise in information gathering, or the recording of events. The boundaries that are established on how to record the past, what is included, what is omitted and the emphasis placed upon events and their significance, will be politically sensitive and contested. This is not necessarily a problem so long as the process itself is transparent, inclusive, pluralist, and accountable.

4.3.         Secondly, we would suggest that the process for recording a history of the Troubles needs to be inclusive of all parties. In other words, its terms of reference would need to cover not just events within Northern Ireland, but in the political currency of the Belfast/Good Friday Agreement, it also needs to incorporate all three strands and the totality of relationships across the island of Ireland and across Great Britain. It should also have sufficient breadth to incorporate the roles of the European Union and the United States over the timeline that is established. 

4.4.         In addition, any process needs to adhere to the core principles of inclusivity, transparency and accountability and be operationally independent. The Expert Advisory Panel appointed in 2024[30] to provide independent advice for historians to write a ‘public history’ of British policy during the Northern Ireland Conflict, provides a good example of how not to proceed. This process, led by an Expert Advisory Group (EAG) of nine academic historians appointed by the former Secretary of State, lacked sufficient inclusivity, transparency and accountability to build credibility or legitimacy across key stakeholder groups, not least the academic community itself.[31]

4.5.         In operational terms we would propose the following principles are followed:

4.5.1.    Inclusivity: That the inclusion of key stakeholders is conceived of as widely as possible, to involve academics, journalists, civic society voices and relevant statutory and policy actors.[32]

4.5.2.    Plurality: That any process of constructing ‘a history of the Troubles’ does so on the understanding that there are conflicting narratives of the past and a plurality of perspectives that need to be reflected in any process that is undertaken. A model that could be followed is provided by the Linen Hall Library and its Northern Ireland Political Collection.[33] This has a track record of inclusivity, plurality of historical narrative and accountability for its operations and governance that has led to its sustainability and legitimacy across the community in Northern Ireland and via international recognition. Other international examples that could be considered also include the Association for Historical Dialogue and Research in Cyprus.[34]

4.5.3.    Transparency and Accountability: This is required at all levels in terms of establishing appropriate firewalls between funding agencies, policy actors and researchers, the terms of reference that are drawn up, and editorial control over the process. This needs to be overseen by appropriate multi-agency stakeholder groups, including but not limited to; professional bodies, learned societies, university ethics boards; UK and Irish funding bodies such as the British Academy, Royal Irish Academy etc.

4.6.         On an optimistic note, groups already exist within Northern Ireland civic society that are ideally placed to mediate such sensitivities and complexities. These have the credibility, inclusive cultures and accountability acquired as a result of decades of involvement in these areas. Without being exhaustive these would include the two main universities and other educational stakeholders; the Public Records Office of Northern Ireland; the Ulster Museum and especially the Linen Hall Library.  These are of course only indicative examples to illustrate the point that capacity exists to deliver a process of this nature.

4.7.         There also need to be adequate firewalls in such a process between government control, funding sources, and the individuals appointed. However, the terms of reference for this process need to be owned by the key stakeholder groups rather than the government and any public funding needs to go through publicly advertised channels with the normal blind peer review and ethics clearance procedures firmly in place. 

4.8.         We hope to see such a process develop and wish the Committee every success in taking this and this and the other issues at the centre of this inquiry further.

February 2025

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