November 2014 has witnessed some interesting statements. At a TJI conference the Council of Europe Commissioner for Human Rights, Nils Muižnieks, made it abundantly clear that the UK state cannot wash its hands of its Article 2 obligations by delegating them down to the devolved institutions and refusing to fund them. The Lord Chief Justice, in a Court of Appeal ruling upholding the quashing of the Jordan inquest, (analysis here) stated it was “abundantly clear that the present arrangements are not working” and stated that there were “models within this jurisdiction, such as the Historical Institutional Abuse Inquiry, which might provide the basis for an effective solution” whilst also emphasising that “The inquiry would need facilities for independent investigation and powers of compulsion in respect of witnesses and documents.” He also stated “Unless a solution is achieved we will continue to incur considerable public expense in legal challenges and claims for compensation such as those arising in this case…” The British government for its part, in papers put to the current multi-party talks process, at least put forward the implementation of the Haass-O’Sullivan Proposed Agreement, ‘Historical Investigations Unit’ (HIU) or some ‘variant’ of it as a remedy. In CAJ’s view the HIU could provide the basis for an independent ‘single mechanism’ to investigate the past, but would require legislation (and also indeed an international treaty and Dáil legislation to cover both jurisdictions) and that the devil will be in the detail.
Whilst raising the HIU London did not step back from its position of seeking to delegate its Article 2 responsibilities on the devolved institutions, its position paper, in a rare acknowledgement that investigations are required by international obligations, stating “Under the devolution settlement, the Executive has the responsibility to ensure compliance with UK obligations in respect of transferred matters such as justice.” London also again sought to pass the financial buck back to Stormont stating that if local parties do not come up with a ‘solution’ “the costs to the [NI] Executive of dealing with the past would increase unpredictably and inescapably.” The UK government is therefore still keen to delegate its Article 2 responsibilities, the question is, even if there was political will in both nationalism and unionism, could the Assembly actually legislate for the HIU?
Is legislating for the HIU within the legislative competence of the NI Assembly?
The legislative competence of the NI Assembly is provided for in the Northern Ireland Act 1998 which distinguishes ‘excepted matters’ (matters permanently kept by Westminster) ‘reserved matters’ (matters kept by Westminster that might be transferred over) and ‘Transferred Matters’ which are everything else (section 4(1)). The Act makes clear that a provision of any Assembly legislation ‘is not law’ if it oversteps the Assemblies ‘legislative competence’, essentially a list of matters the Assembly can and cannot legislate on (s6). This includes any ‘excepted’ matter unless it is ‘ancillary’ to other provisions and the Secretary of State consents (s8). The Assembly can legislate on transferred matters on its own, but if legislating on any ‘reserved’ matters it also needs her consent (s8). The Assembly cannot legislate in a manner incompatible with ECHR rights nor if the provision in question “would form part of the law of a country or territory other than Northern Ireland, or confer or remove functions exercisable otherwise than in or as regards Northern Ireland” (s6(2)). London decides what such functions are.
This latter provision constitutes the first hurdle. If the HIU is going to be in anyway effective it would need powers to compel evidence from the MOD and other parts of the UK government. The Inquiry into Historical Institutional Abuse Act (Northern Ireland) 2013, passed by the Assembly, and alluded to by the Lord Chief Justice, contains a provision which explicitly excludes the inquiry from obtaining evidence controlled by London. The Inquiry’s powers to compel evidence are explicitly constrained to be “exercisable only in respect of evidence, documents or other things which are wholly or primarily concerned with a transferred matter” ((s9(7) see also s22(2)). Notably this exclusion was only inserted at the request of the NIO at a late stage of the bills passage. During the Consideration Stage the Minister, Jonathan Bell, stated the purpose of the amendment, passed unanimously, was to “make it clear the Act will only bind the devolved administration.” It is this power which will ensure the inquiry cannot compel evidence in relation to MI5’s role at Kincora. It is therefore clear that the NIO at least was concerned that the inquiry’s powers might have otherwise extended to the UK government.
The question then turns to whether the subject matter of conflict-related investigations is within the legislative competence of the Assembly. The Assembly is not debarred from legislating to meet ECHR Article 2 requirements. It is explicitly provided for in the 1998 Act that the Assembly can legislate ‘on observing and implementing international obligations’, including ECHR rights (sch 2, para 3). The Secretary of State has also been keen to point out that justice is now a ‘transferred matter’. However, it would be more precise to state that some justice powers were transferred to the Assembly in 2010, but others were retained by London. This includes ‘national security’ and ‘other provisions for dealing with terrorism or subversion’ that are explicitly retained as ‘excepted matters’. It is the question of ‘national security’ that constitutes the greatest obstacle for the Assembly to legislate for the HIU, or could otherwise preclude any HIU established by the Assembly being able to do its job of investigating state involvement cases. The UK does not define the concept of National Security, as the MI5 website elaborates:
The term ‘national security’ is not specifically defined by UK or European law. It has been the policy of successive Governments and the practice of Parliament not to define the term, in order to retain the flexibility necessary to ensure that the use of the term can adapt to changing circumstances.
The UK government has dramatically extended the scope of the concept of ‘national security’ to cover a plethora of matters which are central to dealing with conflict related deaths, and routinely classifies a broad range of material relevant to past investigations under this banner. Anything to do with the role of MI5 is a de facto national security issue, the actions of informants and their handlers are also routinely classed as national security matters. The HIU could not do its job without powers to examine both areas. In the context of the devolution of justice powers in 2010 the UK government produced a Protocol setting out ‘Handling Arrangements for National Security Related Matters after devolution of Policing and Justice to the Northern Ireland Executive: ’ which remarkably through its inclusion in the same seeks to re-designate the whole of the past as a ‘national security’ matter. The Protocol states that in relation to both electronic or paper based material: “…The NIO [will retain] ownership and control of access to all pre-devolution records…” “… DOJ officials will have no access to pre-devolution NIO records that relate to matters that remain the responsibility of the UK Government, including records that relate to matters of national security.” Whole swathes of state activity, including the actions of undercover units and informants in paramilitary groups come under the national security rubric. Unlike historical abuse where it could be argued national security matters are ‘ancillary’ to the inquiry, the UK government has made the excepted matter of ‘national security’ central to numerous issues required to deal with the past. Given this it is now difficult to see how the HIU, if it is to be able to investigate such matters, can fall within the legislative competence of the Assembly.
If the Assembly did proceed to legislate for the HIU with implicit or explicit powers to access ‘national security’ information, as well as the risk of the powers not being regarded ‘as part of the law’, the Secretary of State or Westminster could in any case intervene at a number of stages to limit or block the provisions. There are also other procedural hurdles to be overcome:
- The Speaker is not permitted to introduce a bill into the Assembly if it is not within its legislative competence (s10)
- If ‘national security’ was considered ‘ancillary’ to any provision, or any provision dealt with a reserved matter, the Secretary of States’ consent would be required for it (s8);
- London through Order in Council decides which functions are not to be treated as ‘in or as regards Northern Ireland’, and hence are outside the legislative competence of the Assembly (s6(4-5);
- The Attorney General for NI can refer any Assembly bill up to four weeks after its passing to the UK Supreme Court for a view as to whether it is in the legislative competence of the Assembly (s11);
- It is the Secretary of State who ultimately approves the bill (‘submits it for Royal Assent’) and can veto its approval if she considers it contains any ancillary excepted or reserved provisions, she can also veto the bill if she considers any provision of the bill would be incompatible with the ‘interests’ of ‘national security’ (s14);
- If an Assembly bill contains any ancillary reserved or excepted matters, as inevitably the HIU would, it must in any case be laid before the Westminster Parliament for 20 days and can be blocked if 20 MPs or Lords sign a motion that is then approved by either house (s15).
Could Westminster legislate for the HIU?
As to whether Westminster could establish the HIU, whilst this would undoubtedly bring its own politics and complications, the NI Act does allow Westminster to legislate for anything it wants, including transferred matters (s5(6)). By custom and practice, enshrined in a Memorandum of Understanding known as the Sewel convention, Westminster will ‘not normally legislate with regard to devolved matters except with the agreement of the devolved legislature’ (paragraph 13). Should legislation for the HIU be regarded as a dealing with ‘devolved matters’ the normal procedure would be for a Legislative Consent Motion at the Assembly to be passed, provided the NI Executive and then Assembly, and hence both nationalists and unionists, agreed to the same. In essence in this circumstance everybody, including London, has a veto. However, it is also the case that investigating the past is not a mere policy option but rather an international obligation under the ECHR and other instruments, which ultimately fall to the UK authorities to implement. This makes investigating the past far from a ‘normal’ legislative situation.
There is a precedent for London legislating over the heads of the Assembly when it was required to implement international obligations. In 2007 the then First Minister (Ian Paisley MLA) would not to sign off on legislating for an EU Gender, Goods and Services Directive on reported grounds of its reference to transgendered persons, and Westminster legislated on the Assembly’s behalf. In this instance legal proceedings and the invariable paying out of money would have followed if there was a failure to legislate. As the Lord Chief Justice alluded to this is also the likely outcome of a failure to agree a viable mechanism for legacy investigations. The question is whether the UK government, considers this a price worth paying, particularly if it is able to get away with ‘delegating’ these costs to the devolved institutions, despite the Council of Europe Human Rights Commissioner having given a clear signal this type of delegation is unacceptable, and will surley be subjected to challenge.
Meanwhile the Secretary of State still seems keen on the local parties coming up with a ‘solution’ for the past, whilst surely knowing that either the local legislature could not legislate for the HIU, or that if the Assembly did establish the HIU there would be a range of mechanisms at London’s disposal to limit its investigative reach into state involvement cases.