Northern Ireland Troubles (Legacy and Reconciliation) Bill

We agree with various stakeholders that this Bill as drafted is unlikely to comply with the Convention. Whilst we put forward a series of amendments within this report which are intended to strengthen rights compliance, we acknowledge that some of these amendments would fundamentally alter the entire approach of the Bill. While we support the aim of reconciliation, we urge the Government to reconsider its whole approach and put forward legislation which ensures (i) investigations are independent, effective, timely, involve next of kin, and are subject to public scrutiny; (ii) perpetrators of serious human rights violations are held to account; and (iii) that all possible avenues for the pursuit of justice and the provision of an effective remedy are available to victims and their families. (Paragraph 13) The ICRIR and the duty to undertake effective investigations

There are concerns as to whether the ICRIR is sufficiently independent from the Secretary of State for Northern Ireland. Independence is essential not only to instil public confidence in the proposed new mechanism, but also to ensure compliance with the obligation to undertake independent investigations under Articles 2 and 3 ECHR. The Government should consider convening an appointments panel to make recommendations relating to the appointment of Commissioners. Guidance on the immunity scheme should be included within the Bill so it can be subject to proper scrutiny.

We are concerned that the efficacy of the ICRIR’s case reviews might not reach the standard of effective investigations as required by the Convention. In order to improve the efficacy of the case reviews, there should be an explicit duty on the Commissioner for Investigations to conduct investigations in accordance with the requirements under the Convention. In particular, the Commissioner must be under a duty to take whatever reasonable steps they can to secure the evidence concerning the incident, including eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. The Commissioner must also take reasonable steps to determine whether any force used was or was not justified in the circumstances and seek to identify those responsible for any unlawful conduct. The Bill should be amended to this effect (see Annex, Amendment 1).

The scope of discretion available to the ICRIR should be broadened to allow it to duplicate any aspect of previous investigations where required to ensure compliance with the procedural requirements of Articles 2 or 3 of the ECHR (see Annex, Amendment 2).

The Bill should be amended to impose a duty upon the Chief Commissioner to ensure that reports, wherever possible, seek to identify whether any use of force was justified and lawful, and to identify any persons responsible for unlawful conduct (see Annex, Amendment 3). (Paragraph 29) Legislative Scrutiny: Northern Ireland Troubles (Legacy and Reconciliation) Bill 37

The duty of full disclosure on the relevant authorities is welcome, however, there is no sanction provided for failure to comply. In addition, the Secretary of State may prohibit onward disclosure by the ICRIR. We are concerned that this may perpetuate the existing grievances with regard to the State’s failure to disclose relevant information regarding Troubles-related cases. Consideration should be given to the inclusion of a sanction upon the relevant authorities in circumstances where they fail to comply with their duty of disclosure. Consideration should also be given to the appointment of independent counsel to make decisions regarding disclosure instead of the Secretary of State.

The imposition of a five-year time limit for requesting reviews is problematic in light of the prohibitions and restrictions on all other legal proceedings. The Government should consider allowing for flexibility in cases where new evidence comes to light which could trigger the need for an investigation.

The ECHR requires that there be sufficient public scrutiny of investigations. The proposed model does not provide for the public to engage in the review process. The public is limited to reading the published reports. The Commissioner for Investigations should be required to give consideration to whether any public hearings could be held during the course of case reviews (see Annex, Amendment 4).

The Government must not rely on victims and families to initiate case reviews - there is an obligation on the State to act of its own motion. It is therefore imperative that the Secretary of State ensures that all outstanding cases which trigger the investigative duty under Articles 2 or 3 are referred for review (see Annex, Amendments 5 and 6).

Given the prohibitions and restrictions on all other legal avenues such as inquests and criminal investigations, the ICRIR as a standalone mechanism does not appear to provide a Convention-compliant approach.

There is a risk that the Government will not be able to discharge its procedural obligations under Article 3 ECHR given the narrow definition of “serious physical or mental harm” which may exclude from scope numerous cases concerning treatment which constitutes torture or inhuman and degrading treatment or punishment. This is particularly problematic in light of the prohibitions and restrictions on any other legal avenues. The definition of “serious physical or mental harm” must include the full scope of harm prohibited by Article 3 (see Annex, Amendment 7). Where victims of torture or inhuman and degrading treatment or punishment are now deceased, or lack capacity, it should be possible for next-of-kin to refer cases to the ICRIR (see Annex, Amendment 8) (Paragraph 50) Conditional immunity scheme

We have serious concerns about the compatibility of the conditional immunity scheme with the Convention. However, if the immunity scheme is to remain in the Bill, there should be a higher threshold test for the granting of immunity. At a minimum, the panel must be required to test the veracity of the account given by seeking evidence from relevant third parties, including victims and their 38 Legislative Scrutiny: Northern Ireland Troubles (Legacy and Reconciliation) Bill families where relevant (see Annex, Amendment 9). Additionally, immunity from prosecution should be revocable in circumstances where a false account has been given (see Annex, Amendment 10).

The proposal to introduce immunity from prosecution will amount to an amnesty for serious human rights violations. The ECHR requires that the investigations must “be capable of leading to punishment of those responsible”. Whilst the jurisprudence on the compatibility of amnesties with the Convention is limited, there is very clear guidance which indicates that amnesties for human rights violations conflict with the duty to prosecute and punish grave violations. Unless the ECtHR departs from this position, the conditional immunity scheme is likely to breach the UK’s procedural obligations under Articles 2 and 3 ECHR in circumstances where immunity is granted for unlawful killings, torture, and inhuman or degrading treatment or punishment. The conditional immunity scheme should be removed from the Bill (see Annex, Amendment 11).

It is not clear why the Government did not exclude all relevant sexual offences from the immunity scheme on the face of the Bill. It would assist clarity and transparency to include an exhaustive definition rather than delegate to the Secretary of State the power to define which sexual offences are excluded from the scope of the immunity scheme. Further, although an individual cannot be granted immunity for sexual offences, the Bill still prohibits any criminal investigation of Troubles-related death or serious injury which could potentially cover sexual offences if they are connected to the Troubles. If the prohibitions on criminal investigations are to remain in the Bill, an exception must be made for sexual offences to avoid impunity (see Annex, Amendment 12). If the immunity scheme is retained, further exceptions must be made for conduct which amounts to violations of Articles 2 and 3 in order to avoid impunity for human rights violations (see Annex, Amendment 13). The Bill must also be amended to allow criminal investigations and prosecutions of cases concerning unlawful killings or torture to proceed (see Annex, Amendment 12). (Paragraph 62) Restrictions and prohibitions on legal proceedings

The absolute cessation of civil claims upon introduction of the Bill is not consistent with the rule of law or with the right of access to a court as protected by Article 6 ECHR. Limitation periods for civil cases are legitimate, but they should not be imposed retrospectively (see Annex, Amendment 14). It would be in accordance with the rule of law and the right of access to a court for the Bill to introduce a limitation period of, say, five years following the establishment of the ICRIR. This would allow individuals to bring claims arising from any new information disclosed during the course of the reviews undertaken by the ICRIR over the next five years (see Annex, Amendment 15). We also suggest that the courts should be able to exercise some discretion to allow for claims to be brought outside the limitation period where it would be equitable to do so. We propose an amendment to give effect to this recommendation (see Annex, Amendment 15).

The bar on prosecutions for persons granted immunity and for cases falling outside of scope of “death and serious harm” will lead to impunity for human rights Legislative Scrutiny: Northern Ireland Troubles (Legacy and Reconciliation) Bill 39 violations. Criminal prosecutions for criminal conduct contrary to Articles 2 and 3 must be able to proceed to avoid impunity for human rights violations (see Annex, Amendment 16).

Inquests are often used as a means of discharging the State’s obligation under Article 2 ECHR. The cessation of inquests means that the ICRIR must be capable of delivering Article 2 compliant investigations in lieu of the inquest system. As set out above, the ability of the ICRIR to satisfy this is not guaranteed. We are concerned that the cessation of inquests will deny the families of victims their legitimate expectation to an Article 2 compliant investigation into the deaths of their next- of-kin. We therefore propose that inquests be permitted to continue in accordance with the current five-year plan (see Annex, Amendment 17).

The prohibition of police complaints shuts down yet another avenue for the State to discharge its procedural obligations under the Convention. Whether this results in a breach of Convention rights will depend on whether the ICRIR can solely discharge the obligations to undertake effective investigations in the absence of any other mechanisms. In the absence of any inquests or criminal investigations, the ability to pursue police complaints would become even more important for the discharging of the UK’s procedural obligations.

We agree with the former Director of Public Prosecutions in Northern Ireland that the Government’s proposed prohibitions and restrictions on legal proceedings undermine the rule of law and we urge the Government to reconsider. The restrictions and prohibitions placed on criminal investigations, criminal prosecutions, civil claims, inquests and police complaints shifts the responsibility of undertaking effective investigations entirely to the ICRIR. In addition to the issues raised with respect to Articles 2 and 3, the cessation of legal proceedings also raises questions of compatibility with Articles 6 and 13 ECHR. The right of access to courts and tribunals is inherent to Article 6(1) ECHR which provides that any claim relating to a person’s civil rights and obligations be brought before a court or tribunal. This right of access to the courts is qualified and may therefore be subject to limitations. However, limitations “must not restrict or reduce the access left to the individual in such a way or to such an extent that very essence of the right is impaired.”

The package of prohibitions and restrictions on access to the courts may risk breaching the right of access given the wide-ranging and absolute nature of many of the restrictions. In addition, Article 13 ECHR provides for the right to an effective remedy. Where access to the courts is shut down and the only avenue for recourse is a case review (with no remedy available), the Bill as drafted also risks non-compliance with Article 13. (Paragraph 85) Early release scheme

The expansion of the early release scheme risks breaching Articles 2 and 3. By removing the need to serve a minimum term in custody and reducing the amount to zero, this amounts to a partial amnesty whereby those convicted of serious offences may effectively have their sentences extinguished by the Bill. The disproportionality between the severity of the offences and the reduction in sentence may amount to 40 Legislative Scrutiny: Northern Ireland Troubles (Legacy and Reconciliation) Bill a violation of the Convention as it will effectively allow for impunity. We suggest the scheme should not be extended to such an extent that it equates to impunity. (Paragraph 90) The McKerr Group of cases

We are deeply concerned that the approach to legacy cases put forward in the Bill as drafted will not overcome the long-standing problems as identified by the Council of Europe’s Committee of Ministers. The Bill’s approach to dealing with legacy cases risks the UK failing to comply with the outstanding judgments of the ECtHR, which is a breach of the UK’s obligation under Article 46 of the Convention to comply with adverse judgments. (Paragraph 97) Biometric data

Safeguards relating to the retention and use of biometric data must be tightened to ensure that the regime is a necessary and proportionate interference with the right to private life and does not amount to arbitrary or indefinite retention of data. (Paragraph 102) Legislative Scrutiny: Northern Ireland Troubles (Legacy and Reconciliation) Bill 41