The Stormont House Agreement published by the NIO here, states that the HIU, the single investigative mechanism provided for in the Haass-O’Sullivan Proposed Agreement, will now be implemented (see CAJ commentary on Haass-O’Sullivan proposals to deal with the past, here).
Unlike other aspects of the Agreement no timeframe is set out for the establishment of the HIU, which would take on the unfinished conflict-related cases from the HET and Police Ombudsman, as well as other cases where new evidence emerges. This includes past HET cases deemed as ‘requiring re-examination’ due to flaws in the original review.
The Haass-O’Sullivan Proposed Agreement stated that case transfer from the HET and Police Ombudsman would occur once the HIU was fully established. This would prevent any use of an apparently agreed process which is then delayed or reneged on to be used simply to further delay investigations. This is particularly relevant to Police Ombudsman cases given that the agency, notwithstanding some gaps in its powers and cuts to its resources, has again established its credentials of conducting independent investigations. More complex is the ongoing role of legacy PSNI investigations, including those by the Legacy Investigations Branch (LIB) which has succeeded the HET, given that in our view such a PSNI unit lacks the requisite independence to examine state involvement cases (see CAJ paper here).
CAJ understands that the UK government also unsuccessfully sought to merge legacy inquests within the HIU. The final text of the Agreement makes clear Inquests will continue to be a separate process, and that the NI Executive will bring forward changes to address deficiencies in the Inquest process which impact on Article 2 ECHR compliance (issues CAJ has raised re the Inquest process are summarised in paragraph 19 of a submission to the UN which can be read here).
A previous post here covered the issue of whether the Assembly could actually legislate for the HIU. The Stormont House Agreement states that at least part of the HIU legislation, relating to limitations on onward disclosure of information by the HIU will be taken forward by Westminster. It is possible legislation will be rushed through before Parliament is disolved in March, potentially as an Order in Council. Otherwise the HIU would have to wait until after the Westminster election in May.
The financial annex (available here) to the Stormont House Agreement states that the UK government will now contribute to the costs of the HIU and the other bodies the Agreement proposes to deal with the past. Up to £30m a year for five years will be made available for this. It is not clear if the UK commitment is conditional on the implementation of other entirely unrelated matters, such as the implementation of welfare cuts.
The UK government does not have a great track record in implementing agreements in good faith, the original legislation to implement the Patten reforms to policing being a prime example. As CAJ has have consistently emphasised, that whilst we are supportive of a single mechanism to investigate the past, the devil will really be in the detail. A close eye should be kept on the emerging legislation, to ensure it is not used to roll back or qualify commitments. In this sense the following are just some of the issues which will need to be addressed in relation to the establishment of the HIU:
Disclosure: will ‘national security’ creep back in by stealth?
The Agreement is strongly worded in that it commits the UK government to full disclosure to the HIU. What is qualified is onward disclosure from the HIU. It states that Westminster legislation will provide for the HIU being subject to equivalent measures on existing bodies to prevent any damaging onward disclosure of information by the HIU ‘in order to ensure no individuals are put at risk’ and the state duty ‘to keep people safe and secure’ is upheld. The UK government surely wished for, but have not succeeded in getting, a ‘national security’ caveat into the Agreement, a vehicle increasingly used to prevent examination of alleged human rights violations. It is important that the ‘national security’ shutter is not allowed to creep back into the HIUs work, and the wording of legislation would be crucial.
In relation to what an ‘equivalent measure’ on existing bodies could look like, one is found in s63 of the Police (Northern Ireland) Act 1998 (as amended). This refers to onward disclosure of information by the Police Ombudsman. It qualifies the Ombudsman’s power to identify individuals in statements, although the Ombudsman can still do so if he or she deems it in the public interest. This could be replicated in the HIU with language relating to that in s66(4) of the 2000 Act (as amended) which contains a formulation of ‘information the disclosure of which would be likely to put an individual in danger’. The s63 formulation would make it the HIU’s call as to what would be anonymised or disclosed rather than this call being made by the Secretary of State or any other office with a conflict of interest. What would depart from the Agreement, and potentially stymie the role of the HIU, is if the NIO sought to either vest this decision-making power on identifying persons outside the HIU, to extend the criteria for non-disclosure beyond genuinely endangering individuals, reintroducing by stealth ‘national security’ type exemptions, or front load the duty so that the state is put on notice when the information is disclosed to the HIU. The latter two provisions are currently contained in s66 of the 2000 Act (as amended) in relation to the Ombudsman but would not be consistent with the formulation in the Agreement.
Powers of the HIU: will the RUC be the untouchables?
The Haass-O’Sullivan Proposed Agreement provided for the HIU to have the same powers as the PSNI. The Stormont House Agreement provides that the HIU will have full police powers in all ‘criminal investigations’, which would cover paramilitary and also military/security service involvement cases, but not cases transferred from the Police Ombudsman, where the HIU is to have the same powers as the Ombudsman. Potentially this latter provision may be used to replicate gaps in the Ombudsman’s powers. For example an existing interpretation of Ombudsman legislation has had led to the Ombudsman not investigating cases where the RUC was directly responsible for deaths that were previously examined by IPCC, its predecessor body. If replicated this would constitute a gaping hole in the HIU remit. In addition to issues such as cooperation of retired RUC officers, a big issue is which powers will be available to the HIU in alleged collusion cases involving police but also others. Such cases in theory had previously been subjected to ‘parallel’ Ombudsman investigations and HET reviews. It is not clear which new cases, not on the HET or current Police Ombudsman lists, can be taken on by the HIU. The language of the Agreement provides for new ‘criminal investigations’ when there is fresh evidence not previously before the HET. In addition to the issue of how the HET dealt with such evidence, it is not clear if this will be used to restrict the HIU from investigating misconduct as well as criminality in relation to the exercise of police powers.
On a separate matter the Agreement maintains the PPS as the prosecuting authority for any prosecutorial decisions resultant from HIU investigations. What is not clear is if the HIU, unlike ultimately the HET, will be able to examine past prosecutorial decisions (e.g. decision not to prosecute in state involvement cases).
Governance structure of HIU: the devil will still be in the detail.
The Agreement states that the Policing Board will oversee the HIU. Haass-O’Sullivan had provided for the Board to appoint the head of the HIU, some important commitments to HIU staff not having conflicts of interest, for the HIU being established in legislation and being ECHR Article 2 compliant. The Agreement makes clear that the HIU is to be a new independent body, and stresses it will be operationally independent. What is less clear is the manner in which the HIU will be constituted. Will it, like the Ombudsman, be a ‘corporation sole’, with power vested in its head, or will another structure be developed? Will the head be responsible for recruiting its investigators, and which provisions for experience and avoiding conflicts of interest will be provided for?
The cross-border element of investigations is also referenced in the Agreement which provides for ‘necessary arrangements’ to ensure co-operation and disclosure from all relevant Irish authorities to the HIU, and states the Irish government can bring forward legislation if required. Unlike a number of other peace process bodies there is no commitment to a specific treaty to enshrine such provisions and greater bind the state parties. It is also not clear how conflict related deaths south of the border with alleged UK state involvement, can be investigated as there is no reciprocal commitment.
The advent of the HIU does provide a long awaited opportunity to address the well known limitations in the existing mechanisms which will be set out in detail in the forthcoming CAJ/QUB Law School Report Apparatus of Impunity? – to be launched on the 30 January 9.30am in Queen’s University, further details here. The HIU will only work however if it is got right and does not replicate the problems faced by previous institutions. As we have always said the devil will be in the detail.