2nd Report – The Government's new approach to addressing the legacy of the past in Northern Ireland

The NIO’s consultation and communications strategy prior to the announcement of the Joint Framework attracted criticism from families, victims-survivors and others. The contents of the Joint Framework and the Northern Ireland Troubles Bill may be interpreted by those who raised such concerns as evidence that Ministers were listening, but this does not make up entirely for the frustration, distrust and scepticism that some people experienced along the way. (Conclusion, Paragraph 19)

In future consultation rounds, the Government must implement a strategy whereby people feel genuinely consulted on policy proposals, not simply told what that policy will be. (Recommendation, Paragraph 20) The Commission

Despite the Court of Appeal’s finding that the ICRIR had wide powers, unfettered access to all information, documents, and materials as it reasonably required, and was capable of human-rights compliant criminal investigations, ICRIR was unable to command confidence across the communities of Northern Ireland and beyond. This was a structural issue– one created by the legislation through which it was introduced. While we are sure it will continue to discharge its duties with integrity and rigour until the transition to the Legacy Commission, we are also clear that, unreformed, it would not have been able to win the trust of all communities. If all communities were to invest in and ultimately benefit from the answers that an organisation dealing with legacy cases can provide, significant reform was inevitable. We therefore welcome the Government’s willingness to address many of the concerns, from a range of stakeholders, through the Joint Framework and Northern Ireland Troubles Bill. Issues of clarification and refinement remain, however. (Conclusion, Paragraph 32)

The Joint Framework and Troubles Bill offer a chance to reset the investigation process for Troubles-related cases. Despite reassurances from ICRIR, some stakeholders continued to have misgivings about the 80 commission’s work. Many families and others have entrusted ICRIR with their cases, however, and the fact that these are continuing–and the courts and both Governments saw no reason why they should not–until the new commission takes up this work demonstrates that in law at least the current approach to investigations was sound. By reopening the five-year window for requesting investigations, the legislation also signals a commitment to giving families greater time and flexibility, although concerns have been raised about the potentially arbitrary point at which the window might close. The reset brings other questions, too, which we set out below. (Conclusion, Paragraph 45)

The Government must address concerns about the lack of any specific requirement for the investigations process to be ECHR-compliant; the de facto exclusion of most Troubles-related sexual crimes from the commission’s remit; the perceived risk that the Commission may disclose in its final reports the questions families have asked, or alternatively the risk that it may present its findings solely in reference to the questions posed, and views expressed, by families; the threshold for the exclusion from the commission process of individuals with long-term injuries; and the call from the commission itself for enhanced powers commensurate with those of a police service. (Recommendation, Paragraph 46)

We welcome the provisions in the Bill—echoing what we heard early on in our inquiry—to increase the range of people and organisations that can refer cases to the commission, including the commission itself. Those provisions once again prompt their own questions, however, which we note below. (Conclusion, Paragraph 56)

The Government must address concerns about the Bill’s narrow definition of “close family member,” which may exclude relatives who often play a key role in pursuing information decades after incidents occurred. Ministers must also consider the merits of ensuring that a person’s severe physical or mental harm does not preclude their case being referred to the commission. (Recommendation, Paragraph 57)

The Troubles Bill partly addresses concerns about the Secretary of State’s wide-ranging powers of appointment to the commission under the Legacy Act. Relinquishing such powers to an independent entity may only raise questions of accountability, so transparency will be an important confidence-building part of this process. To that end, the Government should consider the merits of a Minister being bound by a recommendation of the panel of relevant person/s; and publishing an indicative list of consultees, which should include victim-survivor representation. (Conclusion, Paragraph 65) 81

The proposed oversight board for the commission has been criticised for a perceived lack of independent membership. The Government’s confirmation that it will be led by an independent, non-executive chair is welcome, although we note that “independent” still entails appointment by the Secretary of State, albeit following advice from the panel of relevant person/s. (Conclusion, Paragraph 72)

In the interests of transparency, we recommend that the Government publish an indicative list of these consultees. Additionally, the Government must explain the membership and remit of the oversight board more clearly to those stakeholders in whom it needs to build more confidence in its proposals, including what practicable steps it is taking to include international expertise, beyond the parties to the Joint Framework. There is also a case for ensuring that monitoring reviews of the commission take place annually. (Recommendation, Paragraph 73)

While the principle of establishing a victims and survivors advisory group has been broadly welcomed, there is still uncertainty regarding its purpose, its relationship with existing forums, and whether the Government will act decisively, by way of amendment to the Bill, to prohibit participation or representation by the perpetrators of terrorism, crime or paramilitary activity. (Conclusion, Paragraph 80)

The Government must provide detailed guidance on the group’s remit, composition, and operation to address these concerns and ensure it delivers on its intended role of genuinely representing victims and survivors. (Recommendation, Paragraph 81)

The new provisions on conflicts of interest in the Joint Framework and Troubles Bill are, ultimately, a reflection of the political realities of Northern Ireland. By stating this matter of fact, we do not seek to impugn the integrity of any of the current commission officeholders, who continue to discharge their duties in difficult circumstances with the utmost professionalism. Questions remain, however, about the extent of the Secretary of State’s power to determine what constitutes a conflict of interest; the process by which families may raise, and the Oversight Board may determine, conflicts of interest; and whether senior commissioners should have to require commission officers to disclose information relating to a potential conflict of interest. (Conclusion, Paragraph 95)

The Government must also clarify what constitutes for one director, ‘experience of conducting criminal investigations in Northern Ireland’, given the proposal that the other director, ‘will not have that experience but will have experience of conducting criminal investigations outside Northern Ireland’; and who arbitrates if the two directors disagree on how a case should progress. (Recommendation, Paragraph 96) 82

The Joint Framework and Troubles Bill partially fill the gap in commission accountability left by the Legacy Act. It is still unclear, however, what procedure there is to complain about maladministration or service failure by the commission. The Government must also clarify whether the powers of the Police Ombudsman for Northern Ireland to investigate a relevant offence apply only to serving PSNI officers; and whether it would be more coherent– and victim-centred–for the commission to investigate all Troubles-related alleged offences of state actors. (Conclusion, Paragraph 101)

All the reform, goodwill and political impetus in the world will not lead to truth and justice if there is not enough money–either for investigatory or information-disclosing bodies. Despite the initial £250 million allocation to legacy mechanisms, this funding pot has not been updated to account for any of the new mechanisms proposed through the Troubles Bill. Indeed, additional duties on the Commission, responsibilities on bodies charged with identifying and disclosing information and ongoing legacy work currently funded through the devolved settlement all need to be accounted for. Without robust safeguards, regular review, and additional support, including by means of a new, recurring and ring-fenced Government funding stream to meet legacy costs within the PSNI, these reforms risk failure, not least in respect of the provision of contemporary policing in Northern Ireland’s unique and chronically underfunded policing and security context. (Conclusion, Paragraph 106)

The Bill’s provisions for winding up the commission grant the Secretary of State broad discretion, raising concerns that it could be closed prematurely for political or resource-based reasons. There is a case for clearer consultation requirements and evidence-based decisions to protect ongoing investigations and uphold commitments to truth and justice. (Conclusion, Paragraph 110) Troubles-related cases and inquests

The Government’s plans for an enhanced inquisitorial mechanism through the Legacy Commission are seen by some as an improvement on the system introduced by the 2023 Act. We heard there are concerns, however, that they could lead to a hierarchy in terms of investigative processes and standards for different families depending on the circumstances of their case and whether Article 2 of the ECHR is engaged. Routing cases through a reformed commission may prove acceptable to critics of both the legacy inquest system and of earlier proposals to direct them to ICRIR. The proposals for independent judges presiding over public hearings, and provision for next of kin participation, including legal representation, are welcome. Proceedings must be demonstrably impartial. There are also 83 still concerns, however, about how practically independent judges can be who are appointed by the Secretary of State, rather than by the NI Judicial Appointments Commission. (Conclusion, Paragraph 123)

Stakeholders have different interpretations of the potential powers and effectiveness of the Enhanced Inquisitorial Mechanism; some are enthusiastic, others concerned about its powers compared with the inquest system. The Government also has a balancing act to perform, between ensuring that cases are assessed in a timely manner and directing them to the most appropriate investigatory body. The most appropriate may not be the one that can deal with them fastest. Despite the expectation that law officers will exercise a degree of independence from the Government, the proposed role of the Solicitor General in triaging cases has also undermined trust in the process among some stakeholders. (Conclusion, Paragraph 131)

By introducing what it refers to as six new protections for veterans, the Government has attempted to address concerns among former military personnel and others that legacy investigations, whether leading to prosecution or not, have amounted to punishment in themselves. To ensure fairness, however, Ministers have necessarily extended these ‘protections’ to all those engaging in the process. In doing so, they risk over-selling these provisions as guarantees and therefore undermining trust among the very groups in which they hope to instil confidence. Similarly, in pursuit of truth and justice, the new provisions must ensure the effective investigation of legacy cases including, with clear and appropriate safeguards for all, the reopening of previously defective investigations, only where necessary for the purposes of ECHR compatibility or owing to new evidence. (Conclusion, Paragraph 138)

We recognise the fundamental importance of balancing information disclosure with national security issues. Someone has to strike that balance. The Government did not undertake that role under the previous “Package of Measures” for investigating Troubles-related cases, nor does it under Operation Kenova. It will do, however, under the Troubles Bill. This is of course not an issue for the terrorist organisations that caused so much harm and suffering during the Troubles. It was not their modus operandi to keep records. Despite some loosening of disclosure restrictions, however, trust and confidence in the process among some groups still needs to be attained. There may be merit, for example, in amending the right of appeal against Legacy Commission and ministerial decisions on information disclosure to allow for a merits-based rehearing. On a matter of principle, and in terms of resourcing, the obligation on organisations such as the PSNI to assess and classify information as ‘sensitive or prejudicial’ before transfer to the Commission is potentially unnecessary and will impose a 84 substantial and unfunded administrative burden to deal with the past, for organisations already under pressure to deliver services in the present. (Conclusion, Paragraph 160) Information retrieval

Although proposals to establish the ICIR have been broadly welcomed, notable concerns remain. Alongside criticism of the proposal for the ICIR to operate on a pilot basis, there is insufficient clarity regarding the sequencing of its work and that of the Legacy Commission, and the processes for both protecting and verifying information. (Conclusion, Paragraph 177)

The Government must provide more detail on the Independent Commission on Information Retrieval (ICIR), including its relationship with the Legacy Commission, the sequencing of the work of both bodies, the extent to which an information ‘firewall’ exists between them, the ICIR’s information verification processes, and the justification for its proposed pilot phase. Without this clarity, confidence in the ICIR may not be assured, among either those who wish to provide it with information, or those who seek the truth in its reports. (Recommendation, Paragraph 178) Cross-border co-operation and commitments by the Government of Ireland

We welcome the commitment to cooperation on legacy between the UK Government and the Government of Ireland. Ireland now needs to demonstrate its own commitment to establishing and completing human rights-compliant investigations, underpinned by legislation. There is a lack of clarity on the remit, independence and oversight of the proposed legacy unit in the Garda. Victim-survivors and other stakeholders will no doubt look for the establishment as soon as possible of structures comparable to those in the UK, to ensure confidence in the legacy process as a whole across the UK and Ireland. Dublin has stated that it needs to wait for London to implement its human rights-compliant structures before establishing its own. Noting that both governments are signatories to the ECHR, we would urge Dublin to move at pace to show their commitment and mutual good faith, and maximise confidence and the likelihood of successful outcomes. The lack of progress on the Republic of Ireland’s inquiry into the Omagh bombing remains a profound obstacle to uncovering the full truth. It continues to cause deep hurt for many and represents a serious failure of accountability. We have reservations about the Memorandum of 85 Understanding on the Inquiry which the Government of Ireland has agreed, and we do not believe it is a sustainable position for the Government to await its outworkings to determine whether our concerns are confirmed. (Conclusion, Paragraph 204) Reconciliation

Pathways to reconciliation are myriad and complex for every individual, and neither a government, nor a commission, can advance this from the top down. It will emerge only through the diverse acts, large and small, of the people of Northern Ireland and beyond, individually and collectively. For some, too, reconciliation will be neither desirable nor achievable. Importantly though, the Government does have the resources and convening power to create the spaces and symbols to foster it. Reconciliation is no longer so artificially front and centre of the renamed Legacy Commission, but the Government still plans to progress other memorialisation and reconciliation provisions under Part 4 of the Legacy Act, and these may provide the basis for some reconciliation to flourish. (Conclusion, Paragraph 225)

For Part 4 to succeed, the Government must progress its provisions in tandem with implementation of the Troubles Bill, ensure the process for choosing those who deliver it is transparent and allocate capital funding to enable reconciliation projects to commence. (Recommendation, Paragraph 226)

We plan to inquire into societal reconciliation in more depth. At this juncture, however, it is clear—not least from the brave testimony of victims and survivors during this inquiry—that reconciliation stands a chance of succeeding only if accompanied by people’s admissions— and acknowledgment—of the truth. (Conclusion, Paragraph 227) 86