Legislative Scrutiny: Northern Ireland Troubles Bill

The Troubles Bill has been drafted to give the government the maximum control possible over disclosure. In terms of who makes the disclosure decision, the government has reserved that power to itself and placed the burden on individuals to challenge its decisions. Although the government argues this reflects the model of public inquiries, they have not articulated why that model is preferrable over the models for Public Interest Immunity or Closed Material Procedures. In circumstances when the Judicial Panel Members will have held high judicial office, and when the disclosure powers under the Inquiries Act 2005 have been rarely used in comparison to the tried and tested powers of Public Interest Immunity and Closed Material Procedures, this lack of justification for giving itself the maximum control over disclosure is unsatisfactory. The lack of public reasoning leaves unwelcome room for mistrust in the government’s motives to proliferate. (Conclusion, Paragraph 38)

The Troubles Bill should be amended so that the primary decision on whether sensitive information can be disclosed by the Legacy Commission in its reports under Part 3 or Part 4 should rest with the relevant Judicial Panel Member, not the Secretary of State. It should be open to the Secretary of State to challenge the Judicial Panel Member’s conclusion, as they currently can with Closed Material Procedures and Public Interest Immunity cases. (Recommendation, Paragraph 39)

Alternatively, if the government has a compelling reason for having the Secretary of State as the primary decision maker rather than a judicial office holder, they must set out those reasons in public and in detail. It is insufficient simply to invoke the fact that that is the way public inquiries do things: the question the government needs to answer is ‘why is that approach more appropriate for the Legacy Commission than the process used in Closed Material Procedures and Public Interest Immunity cases’. (Recommendation, Paragraph 40) 91

In our view, there is nothing on the face of the bill which would support the Secretary of State’s insistence that a mere ‘risk’ of damaging national security constitutes a high bar, nor that the bill’s threshold corresponds to the bar set in other comparable legal proceedings for preventing disclosure. (Conclusion, Paragraph 44)

The definition of “sensitive information” in clause 16(1) of the bill should be amended, either by (1) removing the possibility that a mere “risk” of damage makes information “sensitive information”, thereby bringing the definition into line with the definition used in Closed Material Procedures; or by (2) adding that any risk must pose a “real” risk, thereby bringing the definition into line with the approach taken in Public Interest Immunity cases. (Recommendation, Paragraph 45)

Public inquiries and courts using the Closed Material Procedure can create documents containing ‘closed’ findings, in addition to the published ‘open’ findings. Such ‘closed’ findings are an integral part of an investigation being effective and thorough in ascertaining the facts surrounding a death. The Legacy Commission’s Part 4 inquisitorial proceedings, which are modelled on public inquiries, should therefore also be able to create ‘closed’ versions of final reports so there can be a full finding of facts and lessons learned, even if those full facts cannot be made public at that time due to national security. (Conclusion, Paragraph 49)

However, it is not clear that the Legacy Commission will have the power to do so under the bill as currently drafted. There is no principled reason why the Legacy Commission should not be able to produce ‘closed’ findings. Indeed, a lack of ‘closed’ findings giving a full picture of the circumstances surrounding the death in relevant cases could be indicative of a lack of an effective investigation for the purposes of Article 2 ECHR. (Conclusion, Paragraph 50)

The government should amend the bill to give the Legacy Commission an explicit power to produce a ‘closed’ final report in addition to an ‘open’ final report in appropriate cases. (Recommendation, Paragraph 51)

The government’s position is that Special Advocates will not appear before the Legacy Commission and that the role of probing and challenging evidence in inquisitorial proceedings could be adequately conducted by the “counsel to the inquisitorial proceedings”. We have a certain sympathy with this position, subject to our concerns about the independence of Judicial Panel Members (see below). However, we are also not in a position to rule out there being cases where compliance with the Article 2 investigative obligation or the common law duty of procedural fairness may require the victim’s family’s interests to be represented by a Special Advocate. (Conclusion, Paragraph 58) 92

The government should reconsider whether the bill should be amended to allow for Special Advocates to be appointed to inquisitorial proceedings in exceptional circumstances. In any case, if the courts in due course confirm that the provisions in the Inquiries Act 2005 (on which the equivalent Part 4 provisions were modelled) allow the chair of a public inquiry to appoint a Special Advocate, the Legacy Commission should be given an equivalent power. (Recommendation, Paragraph 59)

We are concerned that the cumulative effect of the current disclosure provisions in the Troubles Bill is more restrictive than in comparable legal processes. The government has not given a sufficient explanation for why it has concluded that this choice is necessary. We are concerned that this will hamper the ability of the Legacy Commission to build and maintain the trust of all the relevant communities and, as a result, that the opportunities for reconciliation will be diminished. (Conclusion, Paragraph 61)

It is unclear why the Secretary of State has decided to follow the appointment model for public inquiry chairs rather than the appointment model for coroners. Although it is not possible to say in the abstract whether the Secretary of State’s appointment of a JPM would make them insufficiently independent for the purposes of Article 2 in a particular case, we are concerned by the perceptions of executive control this power could create. We are particularly concerned that the Secretary of State will have the power not just of appointment, but of reappointment, as this could create a perception that JPMs have an incentive to please the government with their findings. The Legacy Commission will succeed or fail not just on the basis of strict adherence to legal independence, but also on the basis of the perception of its independence in the minds of the communities it will have to serve. The Northern Ireland Judicial Appointments Commission already makes independent appointments of coroners. There are very good historical reasons for such appointments being made independent of the government in Westminster. We do not understand why the Secretary of State has declined to use NIJAC to appoint the JPMs who will be replacing coroners. (Conclusion, Paragraph 77)

The Troubles Bill should be amended so that NIJAC rather than the Secretary of State is responsible for appointing JPMs. (Recommendation, Paragraph 78)

The current thresholds for Legacy Commission investigations have been set in arbitrary places, with real world consequences for other organisations and the coherence of the Legacy Commission’s purpose. (Conclusion, Paragraph 94)

Instead of fragmenting the investigative processes, the Legacy Commission should be empowered to investigate all cases which fall within Article 2 or 3 ECHR, regardless of who makes the request. It should be able to investigate 93 all Troubles-related deaths and life-endangering conduct reaching the threshold of Article 2 ECHR. In addition, the exhaustive list defining “serious physical or mental harm” should be removed, so that the Legacy Commission can investigate any conduct reaching the threshold of Article 3 ECHR. This would be a more principled approach to addressing the legacy of the past. It would also relieve some of the pressure on organisations like PONI and PSNI, who could productively focus their resources instead on today’s operational challenges while the Legacy Commission deals with the issues of the past. (Recommendation, Paragraph 95)

The definition of Close Family Member in the Troubles Bill is currently drawn too narrowly. The current definition does not match Article 2 ECHR’s approach of ensuring sufficient involvement of the ‘next-of-kin’, which is not exhaustively defined. In addition, the current definition overlooks the reality that, due to the passage of time, it excludes family members who are currently searching for justice for their relatives, particularly grandchildren. (Conclusion, Paragraph 105)

The government should amend the exhaustive list of Close Family Members in clause 93(2) to add an additional catch-all final category: “(g) F is the next-of-kin”. This will ensure that family members such as grandchildren, nieces and nephews of the deceased can be considered Close Family Members. (Recommendation, Paragraph 106)

Clause 67(5) should also be amended to ensure that, even if there are Close Family Members, the Legacy Commission has a discretion to allow other family members to make personal statements as well, if appropriate. (Recommendation, Paragraph 107)

We remain concerned that the two-track approach to the 38 halted inquests is a recipe for mistrust and confusion. If inquisitorial proceedings in the Legacy Commission can do everything inquests can do and more, it is not clear why all 38 cases are not being sent to the Legacy Commission. However, we accept that different families may want to take different routes for personal reasons. (Conclusion, Paragraph 122)

The Secretary of State should publish the reasons he has determined that nine of the 38 revived inquests should return to coroners. These reasons should be specific to the facts and circumstances of each individual case, not generalisations about the nine cases as a group. The government should also amend the bill to place a duty on the Advocate General to publish his reasons for making a direction under new section 16AB(2)(a) or (b) of the Coroners Act (Northern Ireland) 1959. (Recommendation, Paragraph 123)

It is unacceptable that the government has not given an unambiguous commitment that the Duty of Candour will apply to any revived inquest conducted by a coroner in the same way as it would apply to any revived 94 inquest conducted as inquisitorial proceedings by the Legacy Commission. In our view, any suggestion that a different standard would apply to public authorities depending on which track an individual investigation is assigned to by the Advocate General would severely undermine the trust and confidence of the communities whose support the Legacy Commission will need to earn. It is a fundamental matter of fairness. (Conclusion, Paragraph 130)

The government should publicly commit to ensuring that the Duty of Candour under the Public Office (Accountability) Bill applies in the same way to legacy inquests conducted by coroners as to inquisitorial proceedings conducted by the Legacy Commission. (Recommendation, Paragraph 131)

We welcome the inclusion of a ‘safety valve’ which would allow public authorities to request investigations after the five-year time-limit in limited circumstances. We cannot see why the same approach should not be extended to victims and their families. (Conclusion, Paragraph 139)

Clause 27 should be amended so that victims and their families can request investigations after the five-year time-limit on the same terms as public authorities, namely where an investigation is necessary for the purposes of ECHR compatibility, or where new evidence (known or reasonably suspected to exist) means there is a realistic prospect of information obtained through the investigation being provided to a prosecutor. (Recommendation, Paragraph 140) The Independent Commission on Information Retrieval

We remain concerned that, in individual cases, the blanket inadmissibility of evidence held by the ICIR could contribute to a serious miscarriage of justice. However, we also recognise the force in the argument that the ICIR will be unable to fulfil its functions as an inviolable repository of knowledge, thereby encouraging the confidence of would-be information providers, if there are exceptions. (Conclusion, Paragraph 151)

In its response to this report, the government should set out its detailed legal analysis concerning: a. Whether the blanket inadmissibility of ICIR-held evidence in criminal proceedings is compatible with human rights in particular where key exculpatory evidence for a serious crime—like murder—is held by the ICIR and is not available from any other source; and 95 b. What work the government has done to mitigate the risks of such a scenario arising or the impact of such a scenario. (Recommendation, Paragraph 152)

The Secretary of State implied in oral evidence that clause 81(4)(c) would allow him to make regulations about the waiving of the ICIR’s blanket immunity from “suit and legal process”, as set out in clause 81(1). This does not appear to us to be the effect of the bill as currently drafted. (Conclusion, Paragraph 160)

If the Secretary of State’s policy intention behind clause 81 is that he should be able to make regulations about the waiving of the ICIR’s blanket immunity from suit and legal process, the bill should be amended accordingly to make this power plain. (Recommendation, Paragraph 161)

In order to ensure compatibility with the right of access to a court under Article 6 ECHR, the Secretary of State should also consider setting up an independent process which would allow individuals to seek independent redress in appropriate cases—such as employment cases—without undermining the ‘black box’ approach of the ICIR by submitting the dispute to a national court. (Recommendation, Paragraph 162)

We are concerned that the pilot nature of the ICIR will inhibit it fulfilling its potential and carrying out its important work. When the Governments of the UK and Ireland review the success of the pilot, this should be in the forefront of their minds. (Conclusion, Paragraph 167)

We also recommend that the Governments of the UK and Ireland should agree forthwith to extend the pilot of the ICIR to at least five years. This would allow for the time period in which family members can request information from the ICIR to be at least the equivalent of the initial five-year request period for the Legacy Commission. It would also make it more likely that the ICIR would have sufficient time to build the trust of stakeholders so that they are confident in depositing ‘lost’ information in its archive. (Recommendation, Paragraph 168) Veterans

Veterans are both subject to domestic law and entitled to the protections of the UK’s domestic and international human rights obligations. We acknowledge the sincerely held concerns of Veterans today that legal processes involved in inquests, civil claims and criminal prosecutions are having a negative impact on the wellbeing of individuals. However, in a democratic society, we also accept that allegations of profound, even lethal wrongdoing must be properly investigated and action taken in response 96 if wrongdoing is proved. The touchstone must be to ensure that the bill’s approach ensures that those investigations are carried out in a manner which is fair to all those involved. (Conclusion, Paragraph 178)

We welcome the protections set out in the Troubles Bill to ensure that the process of engaging with Legacy processes is fair for everyone, including for Veterans. We intend to conduct further scrutiny of the government’s package of amendments to increase protections for Veterans once the government has published them. (Conclusion, Paragraph 182)

We recommend that the government considers adding provisions to the bill to require the consent of the Attorney General to prosecute any future Troubles-related offences. This approach could add an extra layer of assurance that there is accountability for prosecution decisions in this sensitive area. (Recommendation, Paragraph 191) Other Issues

We are deeply concerned by the government’s approach to the NI Remedial Order. We accepted the government’s reasons for taking the remarkable step of using a remedial order at the same time as a bill on the same subject because the government told us it was vitally important to move as swiftly as possible. However, the government has not shown any particular haste in proceeding with the NI Remedial Order, despite it being within their power to do so. We also find the government’s most recent letter, which lacked any explanation for the continuing delays, inadequate. We therefore intend to review our previous recommendation that both Houses should approve the NI Remedial Order in order to satisfy ourselves—and Parliament—that the Secretary of State still has compelling reasons to proceed using a remedial order. (Conclusion, Paragraph 221)

We are concerned that the government has not updated its initial funding allocation to the ICRIR, despite the additional burdens which will be placed on its successor—the Legacy Commission—by the Troubles Bill. Without adequate additional funding, the Legacy Commission risks being unable to discharge the UK’s obligation under Articles 2 and 3 to conduct effective investigations. (Conclusion, Paragraph 227)

The government should set out its revised funding plans for the Legacy Commission. (Recommendation, Paragraph 228)

It is not good enough that Westminster and the Northern Ireland Executive cannot even agree on who should be funding legacy matters. Without adequate funding to all organisations affected by the Troubles Bill, the bill 97 will not be able to succeed. The Troubles Bill is an opportunity for the parties to resolve the legacy of the Troubles. The parties responsible must not waste this opportunity. (Conclusion, Paragraph 233)

The Secretary of State for Northern Ireland, his Irish counterpart, and the Northern Ireland Executive should continue having dialogue to resolve the funding impasse. In his response to this report, the Secretary of State should set out what discussions have been had between the parties on the adequate provisions of funding and what progress has been made. (Recommendation, Paragraph 234) 98