Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 – There may be trouble ahead…

Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 – There may be trouble ahead…

“Man’s capacity for justice makes democracy possible, but man’s inclination to injustice makes democracy necessary.” — Reinhold Niebuhr

WHAT ARE THE FACTS?

Every day of the year marks the anniversary of someone’s death as a result of conflict in and about Northern Ireland. 3,720 people were killed as a result of the conflict. Approximately 47,541 people were injured. There were 36,923 shootings and 16,209 bombings. Between 1969 and 1998, 1,533 of the deaths as a result of the conflict were young people under the age of 25. 257 of those killed were under the age of 18. The largest age group (25% or 898 people) killed between 1969 and 1998 were those between the ages of 18 and 23. As of 1998, the largest group (54%) of the deaths as a result of the conflict were civilians. As of 1998, the largest group (68%) of those injured were civilian 1

Overall, of those who were killed 52% were civilians, 32% were members of the British security forces and 16% were members of paramilitary groups. Republican paramilitaries were responsible for some 60% of the deaths, loyalists 30% and security forces 10%. Statistics about killings during the Troubles suggest that 87% of killings were perpetrated by paramilitary groupings, with the figure falling to 85% if evidence to date about collusion between paramilitary organisations and British state forces is taken into account. Responsibility for many of these killings is still disputed. Classifications of responsibility will continue to change as further evidence comes to light.

20 years on from the signing of the Good Friday Agreement over one third of killings carried out in Northern Ireland during the Troubles from January 1969 to the signing of the Good Friday Agreement on April 10 1998 are still being investigated by police. There were over 3,720 homicides in Northern Ireland from January 1969 to the signing of the Agreement, while hundreds more people were killed elsewhere in violence linked to the conflict. 1,186 of the Northern Ireland deaths are still part of the caseload of the Legacy Investigation Branch (LIB) of the Police Service of Northern Ireland (PSNI). The figures represent an increase on numbers reported last year. “The police facing these ongoing enquiries are trying to unravel things that happened years ago. Where evidence is possible they’re prosecuting, where evidence is possible they are following it up, but in many cases the trail is cold and so they have still on their books…cases they’ve been unable to (investigate) further.”2

The latest PSNI figures are: 53 legacy inquests with the Coroners Service (these cases relate to 94 deaths).

27 legacy files actively being considered by the Attorney General’s office.

165 historical matters currently under investigation by the Police

Ombudsman’s office, where a further 258 such cases are pending.

Of the 1,186 killings that the PSNI’s Legacy Investigation Branch is assessing:

45.5% are attributed to republican paramilitaries.

23% are attributed to loyalist paramilitaries.

28.5% are attributed to the security forces.

For the remaining 3% of deaths, the background of those primarily responsible is unknown.

As to the Legacy Inquests being dealt with by the Coroners Service, of the 94 deceased who make up the legacy inquests, 60% were civilians who were not members of paramilitary organisations, 33% were members of republican paramilitary groups, 3% were involved in loyalist paramilitarism and 4% were members of the RUC. 81% were Catholic and 19% were Protestant. 55% were killed by state forces, 28% were killed by loyalists and 17% were killed by republicans. Nine of the killings occurred after the Good Friday Agreement was signed but are still considered legacy cases by the Coroners Service due to their political nature.3

WHAT DO THE LOVED ONES WANT?

Lord Robin Eames, is an Anglican bishop and life peer, who served as Primate of All Ireland and Archbishop of Armagh from 1986 to 2006. He believes the legacies of the Troubles won't be solved by the new legislative proposals by the UK government. He sums it up thus: “First of all you have to relate that fact to the whole issue of what the legacy problem is. People look for justice. One person will expect to see somebody in the dock accused of a particular crime. Somebody will say that’s justice. Somebody else will argue ‘I simply want to know what happened’ and the third person doesn’t really know what they want. We also have to acknowledge many of the victims of those years are passing on. It’s one thing to investigate crimes to get a prosecution, it’s another to realise that as time goes on and time passes, much of those enquiries will have to be centred on simply ‘what do we know happened all those years ago.’ It’s a question of, do you keep those investigations going after all these years or do you simply say, ‘this is part of our history, and there is nothing we can do about it?” That is the opinion that many people are forming at the moment and it is very frustrating for relatives and victims. I know many of those people and I can share some of their sheer frustration.” ‘He believes that ‘Patient listening’ is crucial to promoting and finding reconciliation between divided communities. Listening doesn’t mean agreeing on everything, a sentiment he thinks Northern Ireland often questions. And that the church can play a role in this process.4

So there are those who want the police investigations and prosecutions to continue and those who do not but want another form of closure. No one solution will satisfy everyone. Apart from the fact that time is the enemy of a full investigation there is the reality that in many cases it will simply not be possible to provide any factual information beyond that already known to the victims and their loved ones. In many, if not most, of the un-solved killings attributed to paramilitary groups the only information that is likely to be forthcoming would be a confession by the perpetrators or the discovery of some other cogent evidence as to the perpetrators and the reason for the crime. Reality says that there is no motivation for such a confession unless there is a real likelihood of a prosecution. In cases where the state forces were involved there has been a long history of concealment, obfuscation and deliberate failure to disclose the existence of relevant material. State security provides a continuing reason for saying nothing. As one victim said recently: “Do they think that wiping the slate clean will stop us hurting, stop us remembering or prevent us from wanting justice? No it will not. I want confessions, I want justice, I want answers. I have no amnesty on my pain or my grief.”

WHAT DOES THE NEW LAW PROVIDE?

Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (the Act) provides:

1. A new body is to be established called the Independent Commission for Reconciliation and Information Recovery (ICRIR). It is to be led by a panel of up to 5 Commissioners including a Chief Commissioner and a Commissioner for Investigations

2. That the Commissioner for Investigations will be responsible for the ICRIR’s investigative functions and for carrying out investigations into troubles related deaths and cases of serious injury. The Chief Commissioner will chair the judicial panel that will take decisions regarding requests for immunity. He will have the powers of a police constable and nothing more.

3. That the ICRIR will be required to produce and publish a historical record of all troubles-related deaths that are not subject to a request for review consisting of all publicly available information relating to these deaths.

4. That the ICRIR must produce an annual report containing a number of matters including the number of reviews requested and carried out a number of reports produced and the numbers of applications for immunity and their status.

5. The Secretary of State for Northern Ireland must carry out a review of the ICRIR’s performance of its functions by the end of the third year of operation.

6. the Secretary of State will be responsible for appointing the Commissioners who will be responsible for the running and delivery of the functions of the ICRIR.

7. No body in the UK other than the ICRIR can carry out any criminal investigations into Troubles- related incidents. This means that all investigations will stop except where they are being carried out in support of an ongoing prosecution. Prosecutions for Troubles-related offences not involving death or serious injury or which are not connected to offences involving death or serious injury will also be barred. Any existing case in which a decision has been made to prosecute will be allowed to continue until conclusion.

8. Any person in prison having been convicted of a scheduled or equivalent troubles-related offence may apply for immediate release on licence.

9. That the ICRIR will be fully equipped with the necessary expertise and policing powers so that they can carry out investigations for the primary purpose of information recovery as well as being able to refer cases directly to prosecutors if there is evidence of an offence for which someone has not been granted immunity.

10. That the ICRIR will not investigate every death or case of serious injury that resulted from the Troubles. The Commission will be demand led and only take forward reviews when requested by someone entitled to make such a request which provides that close family members may make such a request or if there is no close family member then the Commissioner for Investigations may determine whether it is appropriate for another family member to make a request for a review. Survivors of serious injury caused directly by the Troubles may request a review into the conduct that resulted in that injury. The Secretary of State may request a review of either a death or a case of injury and the Attorney General for Northern Ireland, the Advocate General for Northern Ireland and the relevant coroner in Northern Ireland, England and Wales or the equivalent in Scotland may request a review of a death. A request for a review can only be made within the first five years of the ICRIR’s operation. This suggests that it is the planned lifetime of the IRCIR .

11. Any specific questions about the death or case of serious injury made by those able to apply for a review places a duty on the Commissioner for Investigations to consider these as part of the investigation.

12. It will be for the Commissioner for Investigations to decide the form and manner in which a review is taken forward. The Commissioner for Investigations decides how and when different reviews are carried out including what steps are necessary to carry out the review and whether different reviews should be carried out in conjunction with each other and must take into account any previous investigation that has taken place but not to duplicate any aspect of a previous investigation unless necessary.

13. The Commissioner for investigations will be able to designate senior ICRIR officers with these powers enabling them to secure the information and evidence required for their investigations. The Commissioner for investigations will also have the power to compel individuals to engage with the review and the information recovery process with the possibility of up to £1000 financial penalty for individuals who do not comply with requests from the ICRIR.

14. The ICRIR will have full disclosure from UK government departments, agencies and devolved bodies ensuring that it has all the evidence it needs to establish what happened in each case.

15. Immunity from prosecution for conduct relating to a Troubles-related death or serious injury can be applied for but will only be granted in respect of conduct disclosed by an individual as part of their application. It will not extend to all Troubles related conduct that an individual may have been involved in but which has not been disclosed and an individual cannot apply for immunity from prosecution in relation to an offence for which they already have a conviction. The criteria for immunity from prosecution requires the individual to make an application to the ICRIR for immunity and satisfy it that the individual has provided an account which is true to the best of their knowledge and belief and which describes conduct which forms part of the Troubles. The Panel must be satisfied that the individual’s conduct as described by them in their account could otherwise expose that person to a criminal investigation or prosecution. Further guidance on this is to be issued by the government after the Act comes into force. Individuals applying for immunity from prosecution will be able to rely on previous statements that they have made in previous investigations but can be asked further questions.

16. The Government contends that those individuals who choose not to reveal what they know remain indefinitely liable to the threat of prosecution. However, this seems unlikely in view of the block on further investigations and prosecutions so that this must mean a prosecution by the ICRIR. That would depend on the acquisition of sufficient credible information and the ICRIR remaining in existence.

17. The ICRIR may grant general or specific immunity and if granted immunity no criminal enforcement action can be taken in relation to that offence. If immunity is not granted, criminal enforcement action could be taken in respect of the offence. If the Commissioner for Investigations thinks that there is enough evidence that an offence has been committed the ICRIR can directly refer a case to the relevant UK prosecutor. The duty on the Chief Commissioner to publish a report does not apply where a review was carried out as a result of a request for immunity. In that event the Chief Commissioner must take into account the views of any survivors or close family of any victims of the case in question when deciding whether to publish the report.

18. Reports prepared must be submitted in draft to the person who requested the review and that person must be given the opportunity to make representations in advance of publication. Where the person who requested the review was not a family member the ICRIR should seek to identify close family members or if one cannot be identified another family member to share with them the draft of the final report and provide them with the opportunity of making representations in advance of publication. The Chief Commissioner must also provide a draft final report to anyone criticised within the report and provide them with the opportunity to make representations in advance of publication.

19. The ICRIR will be required to produce and publish a historical record of all Troubles-related deaths that are not subject to a request for a review consisting of all publicly available information relating to these deaths.

20. Inquests that have not progressed to a stage where a substantive hearing has taken place will not be continued. There is no automatic referral process but in cases where an ongoing inquest must close, families can request that the ICRIR reviews a death as may a Coroner.

21. The Act will prohibit the bringing of new civil claims relating to the Troubles from the date of its introduction to Parliament and any claims brought before the date of the bills introduction to Parliament will be allowed to continue to their conclusion.

22. The Act provides for the identification and funding of organisations with the requisite experience and trust to collaboratively deliver an inclusive oral history initiative with the purpose of encouraging people from all backgrounds to share their experiences of the Troubles. The Act provides for the establishment of a research fund developed in partnership with the Arts and Humanities Research Council to commission new academic studies into themes and patterns relating to the Troubles to inform public understanding through the use of newly available source material. The Act commissions an evidence-based “Memorialisation Strategy” to be published after 12 months making deliverable recommendations on inclusive new initiatives and structures to commemorate those lost during the Troubles to which the Secretary of State for Northern Ireland must formally respond.

“If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse, and you say that you are neutral, the mouse will not appreciate your neutrality.” — Archbishop Desmond Tutu

WHAT ARE THE CRITICISMS OF THIS ACT?

1. Articles 2 and 3 of the European Convention on Human Rights (ECHR) require that investigations into deaths and serious injuries must be independent, effective, reasonably prompt and expeditious, include a sufficient element of public scrutiny, adequately involve the next of kin and be initiated by the state rather than being solely dependent on being raised by the next of kin. The reviews of cases by the ICRIR will not meet these requirements. Additionally the ICRIR appear to lack sufficient scrutiny powers because of the lack of sufficient powers to secure evidence. The Act refers to a review instead of an investigation. When an alleged perpetrator applies for immunity, the immunity requests panel is not required to seek information from anyone else. The European Court of Human Rights (EctHR) has found investigations to be inadequate when investigating authorities have accepted the version of facts presented by the accused without hearing further witnesses.5 Since the ICRIR is obliged to grant immunity if the individual’s account meets the criteria specified in the Act, the process would therefore be likely to be inadequate under the ECHR. Further the review process is demand based. As such the process appears to ignore jurisprudence requiring independent state action in every case. “Whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or take responsibility for the conduct of any investigative procedures.6 In the case of someone suffering “other harmful conduct” including torture this could only be instigated by a person who suffered a serious injury or by the Secretary of State. There is no equivalent provision authorising a family member to instigate a review process if the victim is deceased. This means that many allegations of serious human rights violations may go uninvestigated and that Article 3 will be likely to be violated.

2. The conditional immunity scheme does not comply with international human rights law as it would violate the obligation to effectively investigate potentially unlawful killings, torture and cruel, inhuman or degrading treatment. The ECtHR has articulated a general opposition to reconciliation linked amnesties stating that offering immunity for violation of Articles 2 and 3 would diminish the purpose of the protection afforded by those provisions and run contrary to the state’s obligations under the ECHR. Further it has repeatedly held that sanctions cannot be disproportionately lenient including where an individual is granted immunity.7 The ECtHR has repeatedly found the UK to be in violation of the procedural obligations under Articles 2 and 3 in relation to conflict-related crimes in Northern Ireland - some going back more than 20 years.8 The Council of Europe’s Commissioner for Human Rights said in June 2023: “Several judgments related to the legacy of the Troubles have been waiting to be executed for 20 years or more”

3. Due to the low threshold for immunity under the Act, it is likely that criminal prosecution will practically be unavailable in the majority of cases which will become subject to intervention by the ICRIR.

4. Any limitation on the Article 6 Right to a fair trial must be necessary and proportionate in and in pursuance of a legitimate aim. The government argued that the judgement in the Stubbings case 9 justified and made legal long limitation periods. However under this Act the foreclosure of all forms of criminal and civil justice alongside the relaxed conditional immunity scheme will leave no option for redress. Arguably the government is seeking to use its prior failures in providing justice for victims and survivors to create a legitimate aim for further restricting rights and it is likely, if not inevitable, that the ECtHR will find that the foreclosure of justice mechanisms is unlawful.

5. The provisions of the Act override the 2014 Stormont House Agreement which had the backing of most of the political parties in Northern Ireland as well as the British and Irish governments. By that Agreement the participants:

agree that an approach to dealing with the past is necessary which respects the following principles: promoting reconciliation; upholding the rule of law; acknowledging and addressing the suffering of victims and survivors; facilitating the pursuit of justice and information recovery; is human rights compliant; and is balanced, proportionate, transparent, fair and equitable. The Agreement also established a new independent body to take forward investigations into outstanding Troubles-related deaths called the Historical Investigations Unit. This Unit will cease its work in consequence of the Act.

6. The Bill, when introduced, was opposed by all parties in Northern Ireland including the Democratic Unionist party and Sinn Fein. It is also been opposed by veterans groups, academics and political commentators. A team of academics from Queens University Belfast School of Law, the Human Rights NGO in Northern Ireland and the Committee on the Administration of Justice labelled the Bill “unworkable, in breach of the Good Friday Agreement and binding international law and it will not deliver for the victims and survivors many of whom have waited for decades for truth and justice”. It will also override the devolved institutions in order to achieve its aims brushing aside their widespread opposition to these proposals. Additionally, experts from the United Nations released a statement calling for the withdrawal of the Bill warning that the Bill would substantially hamper victims’ access to remedy before the criminal and civil courts for serious human rights violations and abuses suffered. It would further preclude information recovery and reparations for those victims who have for decades struggled to get justice and redress for the harm endured. They added “the bill appears to conflate reconciliation with impunity as well as oppose legal accountability which is an essential pillar of transitional justice processes to truth information recovery and reconciliation.” They argued that it would undermine the country’s rule of law and place the UK in flagrant contravention of its international human rights obligations. In breaching the Good Friday Agreement it would significantly undermine the Troubles-related peace process and set a damaging and concerning example for other countries to follow coming out of conflict. The Council of Europe Commissioner for Human Rights highlighted serious issues of compliance with the ECHR that the bill raised.

7. There is criticism of the powers the Act gives to Ministers. The Secretary of State has powers to: Control ICRIR’s funding; Request reviews from ICRIR; Appoint Commissioners to ICRIR, and decide how many Commissioners will make up the Commission; Make rules about the procedure for making and dealing with requests for immunity from prosecution; give guidance (that must be taken account of) about considering whether a person’s account is truthful, whether their conduct is eligible, and what form of immunity can be offered; Give guidance (that must be taken account of) about the identification of sensitive information to ICRIR, police forces in Great Britain and Northern Ireland, Northern Ireland departments, Scottish Ministers and more; Give guidance (that must be taken account of) about whether a review might prejudice the “national security interests of the United Kingdom”; Review and give or withhold permission for the disclosure of sensitive information by ICRIR; Make provision about the holding and handling of information by ICRIR by regulations subject to the negative procedure that may (among other things) make provision about the destruction or transfer of information, confer functions on the Secretary of State or any other person, or create criminal offences; Provide for biometric material not to be destroyed, and preserved material to be retained, by regulations subject to negative procedure; Review, and if satisfied that it is no longer needed, wind up ICRIR by regulations subject to the affirmative procedure that may also make provision for the transfer of property, rights and liabilities.10 These powers can be exercised by junior ministers.

8. The International Federation of Human Rights, a Federation comprising 192 organisations from 117 countries committed to defending civil, political, economic, social and cultural rights as set out in the Universal Declaration of Human Rights, made the point that while most of the killings in the Troubles were carried out by republican and loyalist paramilitaries some were carried out by the British security forces. The patterns of state human rights violations that fuelled the conflict encompass impunity in relation to direct military killings. But there is also security force collusion with paramilitary groups as well as the use of torture. Such patterns, they say, are by no means unique to Northern Ireland. The gangs and counter gangs counterinsurgency strategies of the UK military were deployed in numerous colonial wars. The “five techniques” and other forms of torture, including waterboarding practised in Northern Ireland, resurfaced in Iraq and elsewhere. The need for accountability to prevent history repeating itself could not be clearer.

9. The Act is supported by the Conservative Party and Representatives of the Northern Ireland Veterans Movement, a group representing 200,000 Army veterans who served in Northern Ireland.

10. There is no legislative consent from the devolved parliaments for Scotland and Northern Ireland.

11. Two high profile firms of solicitors in Northern Ireland with excellent track records for human rights cases have already indicated that they will be lodging applications for families directly affected by the Act. Reports indicate that by the time the Act became law there were 16 legal challenges. The Government of Ireland, who took the UK to the ECtHR over the torture of suspects by state forces and won11, has also indicated that they are taking legal advice on an interstate case over the Act.

“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.” — Martin Luther King Jr. ■

By Alastair Logan OBE., LL.B

By Alastair Logan OBE., LL.B

Council Member for the Surrey Constituency

1. https://cain.ulster.ac.uk/victims/docs/group/htr/day_of_reflection/htr_0607c.pdf

2. https://www.thedetail.tv/articles/new-figures-reveal-scale-of-unsolved-killings-from-the-troubles

3. https://www.thedetail.tv/articles/new-figures-reveal-scale-of-unsolved-killings-from-the-troubles

4. https://www.belfastlive.co.uk/news/belfast-news/troubles-killers-told-confess-bombs-10031024

5. Ozalp Ulusoy v Turkey Judgement 4 June 2013 paras 51-54

6. Jordan v the United Kingdom judgement 4 May 2001 paragraph 105.

7. Armani da Silva v UK judgement 30 March 2016 paragraph 285

8. See for example Geraldine Finucane's application for judicial review (2019) UKSC 7

9. Stubbings v the United Kingdom judgement 22 October 1996 paragraph 52

10. https://www.libertyhumanrights.org.uk/wp-content/uploads/2019/12/Libertys-briefing-on-theNorthern-Ireland-Troubles-Legacy-and-Reconciliation-Bill-second-reading-HoL-Nov-2022.pdf

11. Ireland v United Kingdom (1979-80) 2 EHRR 25