Resourcing and Policing the Past in the North of Ireland

Rights NI is delighted to welcome this guest post from Christopher Stanley of KRW  LAW LLP  

There is now an emphasis in this jurisdiction that public sector finances will be directed toward Policing the Present and not Policing the Past. This was made clear in the financial statement of the Minister of Justice David Ford MLA who announced that budget cuts would be imposed on the Office of the Police Ombudsman of Northern Ireland (OPONI) the Police Service of Northern Ireland (PSNI).

Both the Ombudsman and the Chief Constable made it clear that these cuts would come out of respective budgets of the PONI History Directorate and the PSNI HET. The HET is now effectively closed and to be replaced by a smaller PSNI unit provisionally called the Legacy Investigation Branch (the PSNI £1.2billion annual budget is used to employ 7000 police officers, one per 265 head of population compared to one per 436 in England and Wales – why the imbalance?)

Earlier in the year the Chief Coroner for Northern Ireland wrote to the Minister of Justice and the Secretary of State for Northern Ireland regarding the underfunding of the coronial process in this jurisdiction and the effect this is having in establishing the mounting number of Conflict related Legacy Inquests.

There is, therefore, not just a political crisis in this jurisdiction regarding how to make progress on Dealing with or Contending with or Policing of the Past but now both a resource crisis and a human rights compliance crisis around the mechanisms constituting the Package of Measures agreed between the UK government and the Committee of Ministers (CoM) following the European Court of Human Rights (ECtHR) judgments in the McKerr group of cases. The Package of Measures has effectively collapsed. The failure to achieve progress on the Haass/O’Sullivan Proposed Agreement on Contending with the Past and the arrival of another US Envoy indicates that regarding Dealing with the Legacy of the Conflict in the North of Ireland in terms of delivering truth, justice and accountability we have arrived at a point of stasis which effectively means the toxicity of the Past which overshadows the present and determines the future will remain and truth, justice and accountability will continue to be unobtainable for the victims and survivors of the human rights violations suffered during the Conflict.

It is not the issue that Policing the Present in the North of Ireland is any less important than Policing the Past given the nature of our jurisdiction, the devolved settlement, the security situation, sectarian based criminality and so forth. Rather that the Legacy of the Conflict cannot be ignored as it informs the survival of the Peace. There is therefore an ethical, political and legal obligation to Deal with the Past in the North of Ireland which cannot be avoided. Politicians with allocated block grants and devolved powers have to make hard decisions in terms of the prioritization of resources but unlike the rest of the UK, the North of Ireland continues as a ‘state of exception’ with its ‘particular circumstances’ underpinned by an internationally recognised Peace Agreement, The importance of the Agreement was recognised last year in the address of US President Barack Obama to an audience in Belfast before the G8 summit (which cost £80million to police, £20million coming from the PSNI budget: see G8 and The But). A number of points can be ventured on this situation of stasis over the Past:

First, it is interesting to draw attention to the evidence of David Ford MLA before the Committee for Justice of the Northern Ireland Assembly on 01 10 2014. Faced with difficult choices Mr Ford clearly indicated that in terms of resources to investigate a Conflict related human rights violation following a breach of Article 2 (Right to Life) of the European Convention on Human Rights (ECHR) there was duty upon the UK government as a participant in the Conflict to fund human rights compliant mechanisms:

“I also believe that I have responsibilities under Article 2 to keep society safe this year and that the responsibilities of the past lie more with those who had responsibility, principally the British Government. I noted two interviews on Radio Ulster this morning from people who agreed with the view that I have just expressed. They said that there are real issues of the legacy of the past that cannot be dealt with unless there is the direct involvement by the Northern Ireland Office or other aspects of the British Government funded by the Treasury, because the DOJ is funded for the present, not to deal with the past. We simply cannot get into the position in which the good work that is being done by justice agencies for the present cannot be carried through because of the legacy of the past. That requires a political joining-up. It requires an input from the British Government, and it requires the Treasury to accept that there are specific issues there. I think that most people will accept that it is not possible for us to manage today’s budget to deal with the past as well as the present.” (See: Ford)

Second, the Chief Constable of the PSNI in his evidence to the same Committee on 08 10 2014 stated:

“I see it as a core policing function. Policing and justice is a devolved matter. If there needs to be negotiation between the Executive — the devolved Administration — and the British Government or anybody else around additional funding, I think it is in the political space and not one for the Chief Constable to comment on. I would be grateful for the money, so long as it was done ethically and lawfully, from whatever source. I do not think it is my position to be pointing the finger and saying who should be paying. My job is to deliver a policing service within the funding envelope that I have. Mr McCartney: I am sure the British Government do everything ethically and lawfully.” (See: Hamilton)

Third, this is not a view evidently shared by the UK government as can be seen in a recent communication between the Northern Ireland Office and the CoM on The Package of Measures on 10 10 2014:

 “There are clear tensions across the justice system in Northern Ireland between delivering services to protect the public safety whilst directing sufficient resources to address the legacy issues …. The UK government is clear that we do not ‘own’ the past. It is right for the parties in Northern Ireland to lead this process and to seek an agreement on the past.” (See: NIO)

Four, is this view of the UK government ethically, politically and legally challengeable? It reflects the devolution mentality located in Westminster regarding this jurisdiction that devolution (except of matters National Security) means absolution of all central government responsibility leaving it to The Province ‘to lead this process and to seek an agreement on the past’. This has been the Westminster mentality since at least the Eames/Bradley Consultation on Dealing with the Past if not before and certainly in response to the Advice on the Bill of Rights form Northern Ireland.  It is a repugnant attitude in as much as it evades responsibility for the role of the British state during the Conflict when Direct Rule was imposed. It also cocks a snook at the Belfast/Good Friday Agreement 1998 and international political expectations thereon. In addition it is a position that is in contravention of legal obligations arising under the ECHR not least with the collapse of the Package of Measures and the continuing scrutiny of the CoM.

Five, even under the provisions of the Margin of Appreciation doctrine which has been developed by the ECtHR, a challenge in Strasbourg to the UK government’s failure to resource a human rights compliant investigatory mechanism to discharge its continuing procedural obligations arising from the Conflict related breaches of Article 2 (and Article 3) of the ECHR cannot be dismissed on a resource argument where there is an on-going breach. Practically it would by nigh impossible for a supranational court to force a sovereign state to implement a specific policy to discharge a Convention breach. It would be politically embarrassing but that is all (and this within the present climate of a Conservative government proposing to de-link the UK from the ECHR and the direct jurisdiction of ECtHR). Similarly a domestic court would be similarly reluctant to challenge decisions of the Executive as seen in recent judgments in England and Wales on austerity measures.

Six, what next? In the absence of local political will at Stormont and central government will at Westminster and the remoteness of resources becoming available to establish a Haass/O’Sullivan Historical Investigations Unit mechanism, victims and survivors of the Conflict are left with no choice but either to Shut Up and Go Away (a stance articulated and resisted by some campaign groups such as Ballymurphy and Loughgall) or to resort to litigation either through public law applications to challenge state failures regarding the Past in the North of Ireland or through civil law claims for compensation. Either way such litigation creates a deficit in the public finances in terms of the UK government default position to contest all such challenges or to pay out vast sums of money on individual claims.

The contentious issue of resources and human rights compliance in the context of the North of Ireland was powerfully underscored recently in the address of the European Commissioner for Human Rights Nils Muiznieks in his address the Ulster  University Transitional Justice Institute to an audience of victims, lawyers, academics, NGOs and policy makers including the Deputy First Minister on the theme of  “Transitional Justice in the Context of European Convention Obligations: The Right to Life and Dealing with the Past” (TJI). In an interview to the BBC Mr Muiznieks stated:

“I’m concerned. I think far too long a period has passed before people have received justice and information about the fate of their loved ones and about the fate of these cases,” Mr Muiznieks said.

“It is clear that budgetary cuts should not be used as an excuse to hamper the work of those working for justice. Westminster cannot say ‘well we will let the Northern Irish Assembly deal with this, this is under their jurisdiction’.

“The UK government cannot wash its hands of the investigations, including funding of the investigations. These are the most serious human rights violations.

“Until now there has been virtual impunity for the state actors involved and I think the government has a responsibility to uphold its obligations under the European Convention to fund investigations and to get the results.

“The issue of impunity is a very, very serious one and the UK government has a responsibility to uphold the rule of law. This is not just an issue of dealing with the past, it has to do with upholding the law in general.” (See: BBC 06 11 14)

On foot of this statement of condemnation David Food MLA took the opportunity to underscore the point he made to the Committee of Justice:

“At the moment, the justice system is funded for today – it’s not funded for the past. That is why in the political talks I’ve made it clear we need a new specialist unit – this would be something like the historical investigations unit recommended by Richard Haass last year. We should be seeking funding for that from the British government, given its role in the past” (See: BBC 07 11 14)

It is not as if money has not been available. The Patten RUC Redundancy Scheme: £500,000,000: Patten; the hearing loss claims on behalf of retired RUC Police Officers: £135,000,000: Hearing Loss; the gratuity payments for RUC Reserve Officers: £20,000,000: Gratuity; the gratuity payments for former serving soldiers of UDR: £250,000,000: UDR; the cost of rehiring ex RUC police officer into the PSNI: £106,000,000: PSNI. Perhaps such a comparison is unfair in a transitional post Conflict society where there is no hierarchy of victims. But in the brave new world of austerity the victims and survivors of the Conflict in the North of Ireland may not see it that way and will continue to demand truth, justice and accountability at no matter what cost or with what embarrassment to the UK government.

The Human Rights Commissioner and the Minister of Justice have thrown the ball of fiscal responsibility for investigation the Legacy of the Conflict in Northern Ireland into the Westminster court. It is now time to see how London responds before further litigation is needed and a return to Strasbourg becomes necessary where the political manoeuvring to close the door on the Past by the British government becomes exposed on behalf of the victims and survivors who will not go away or be quiet.