Third Report: Addressing the Legacy of Northern Ireland’s Past: the Government’s New Proposals (Interim Report)

We are disappointed that the UK Government has decided not to submit, to date, written evidence to our inquiry, but we look forward to receiving it, just as we would look forward to formal submissions from the Irish Government. In addition, the planned oral evidence session with the Secretary of State was postponed at the request of the Government. This Report is necessarily an Interim Report, in which we set out our recommendations and conclusions with a view to informing the future policy. We hope that the Government will use its response to this Interim Report to address the outstanding questions in this policy area and keep in mind the principles of the Stormont House Agreement and New Decade, New Approach.

Too many key questions remain regarding how the proposed new institution would operate and function. It is deeply worrying that since 18 March, when the Government announced its new legacy proposals, it has been unable to provide any further policy detail. While covid-19 has presented a challenge across government, policy development has continued across Whitehall, and the Northern Ireland Office has digital platforms to facilitate its work. The information lacuna is especially regrettable given the sensitivity of the issues and the period since many of the events occurred. Delay and uncertainty perpetuate an unacceptable situation that has already gone on too long. (Paragraph 6) Stormont House Agreement

The Committee welcome the Government’s desire to legislate to address the legacy of the past in Northern Ireland. Our predecessor Committee’s inquiry in the previous Parliament identified flaws in the draft Bill which would have prevented its receiving broad support in Northern Ireland. However, the new proposals represent a unilateral and unhelpful departure from the Stormont House Agreement rather than positive and progressive evolution. The Government must, as soon as possible, introduce legislation that is consistent with the six principles of the Stormont House Agreement: • promoting reconciliation; • upholding the rule of law; • acknowledging and addressing the suffering of victims and survivors; • facilitating the pursuit of justice and information recovery; • complying with human rights; and • being balanced, proportionate, transparent, fair and equitable.

The Irish Government will have a role to play in parts of a new legacy process. It will need to maintain a collaborative approach to help resolve legacy cases, which we 26 Addressing the Legacy of Northern Ireland’s Past: the Government’s New Proposals (Interim Report) heard has not always been the case in the past. That will best be achieved by the UK Government adopting a policy of meaningful and appropriate engagement with the Irish Government as envisaged in the Stormont House Agreement.

The Government is right to recognise the unique circumstances in Northern Ireland by decoupling Northern Ireland legacy issues from the Overseas Operations (Service Personnel and Veterans) Bill. Any attempts to conflate the two must be resisted. (Paragraph 20) Consultation and legislation

We are dismayed by the lack of consultation and engagement with representative groups by the NIO on its new proposals both before and after the publication of the WMS in March 2020. The WMS was a unilateral and emphatic announcement of intent rather than part of a meaningful consultation process. This issue demands serious and sustained engagement by the Government. Peacebuilding in Northern Ireland has historically been based on establishing consensus and agreement. Merely telling parties or organisations what Government either has done or is about to do is not consultation. We invite the Government to set out in written and/or oral evidence its engagement with the Irish Government, an invitation of which the Irish Government is also welcome to avail itself, if it so wishes. In order to ensure that its new legacy proposals are fit for purpose and capable of drawing support from all communities, the Government must conduct a transparent and meaningful consultation with victims’ groups, Northern Ireland political parties and, to the extent necessary, the Irish Government before publishing legislation. (Paragraph 24) Proposed new legacy body

The Government must: a) set out the rationale for its decision to abandon the model of a separate Historical Investigations Unit and Independent Commission for Information Retrieval proposed in the Stormont House draft Bill; and b) explain the potential merits of forming a single organisation to perform both investigations and information recovery.

The aspiration for the new body “to move at a faster pace” set out in the WMS will be achieved only if it is matched by appropriate funding. The Government must ensure that any new legacy institution has sufficient funding to carry out its work thoroughly and efficiently. (Paragraph 30) Investigations

The permanent closure of a case in which a serious crime has been committed raises profound legal, ethical and human rights issues. There is considerable doubt whether such closures are the right approach. Before the Government introduces legislation, it must clarify its policy on: a) whether cases could be reopened if new, compelling evidence comes to light; Addressing the Legacy of Northern Ireland’s Past: 27 the Government’s New Proposals (Interim Report) b) what would happen to evidence and files in cases that are permanently closed; c) whether decisions on case closure would be subject to a right of appeal; d) what practical actions “swift final examinations” would entail; e) who would be responsible for making decisions on which cases merit a full police investigation; f) whether the new body would be responsible for undertaking such investigations; and g) how to ensure that bodies that hold information do not simply run down the clock by withholding material.

There may be merit in using normal and prevailing tests for prosecution. However, the WMS indicates a potential alternative approach. Were the Government’s plans to be adopted, we stress the importance of the need to build confidence in that approach across the community in Northern Ireland and in the Republic of Ireland. The tests to be met include the clarification of: a) the threshold for “new compelling” evidence meriting a full investigation; b) setting a legal bar on cases that do not meet the threshold being reopened in the future; and c) whether the proposed new system is secure against possible legal challenge. Given the importance of this issue, we again invite the Government to address these points in both written and oral evidence to the Committee.

We expect the Government to abide by its obligations under the ECHR to ensure that investigations conducted by the new legacy body are Article 2 compliant. Victims and families will be failed by a process that results in legal challenge and further delay. This will cause frustration to those who have already waited too long to find out what happened to their loved ones. In setting up any legacy institution, the Government must publish guidelines setting out the steps the body and its staff will take to ensure that its investigations are ECHR compliant. (Paragraph 42) Information recovery

The Government is right to recognise the importance of providing families that seek it with as much information as possible about the death of a loved one. Many families seek not redress, but merely to be treated with respect and to obtain information. Unfortunately, the WMS did not explain the operation of the proposed information recovery mechanism and the intervening period of radio silence has been thoroughly unhelpful.

The Government must, with some urgency, set out how its proposed information recovery mechanism will operate, including the means by which it will obtain information. The needs of victims and survivors, for truth, accountability and for reconciliation will be deeply damaged if information is not fully available without 28 Addressing the Legacy of Northern Ireland’s Past: the Government’s New Proposals (Interim Report) impediment to legacy structures. For this to be successful, transparency and access to relevant information are key and the positive and proactive engagement of the relevant actors and agencies would be required. We heard that historically the operational culture has not always met this test and ask those concerned to reflect carefully on this point. (Paragraph 47) Operation Kenova

Any new legacy process must command the trust and confidence of those engaging with it. Although no scheme will ever command universal support, the Government must have at the heart of its thinking the objective of maximising trust across the traditions and ensuring full compliance with all legal requirements. We are pleased that the Government has promised to put the needs of those most affected at “the heart of the process”, but we note that no further detail has been provided on how families will be able to engage with the new process. The evidence that we received suggests that the Government can learn lessons from Operation Kenova when developing its own legacy system.

The Government must examine: a) how Operation Kenova has engaged with victims’ groups and families; b) whether Operation Kenova could be scaled up to deliver across the piece; and c) whether aspects of Operation Kenova’s approach could usefully be replicated or reinforced in any new legacy body or bodies, including its use of investigative governance and victims oversight mechanisms to provide independent scrutiny and build public confidence and the way in which it has fostered positive and trusting relationships with families.

The Commissioner for Victims and Survivors in Northern Ireland performs the duties set out in the Victims and Survivors (Northern Ireland) Order 2006. Those duties include promoting and safeguarding the interests of victims and survivors and reviewing laws, practices and services. We note that this key role has been vacant since 31 August 2020. We respectfully urge, given that the appointment of the Victims Commissioner is a devolved competence, the First Minister and Deputy First Minister in the Northern Ireland Executive to fill the position of Victims Commissioner as speedily as possible. (Paragraph 55) Addressing the Legacy of Northern Ireland’s Past: 29 the Government’s New Proposals (Interim Report)