Independence, Inadmissibility and Information Verification in the Independent Commission on Information Retrieval Proposals- Guest post by Professor Louise Mallinder

by Guest Post on October 5, 2015

On 23 September 2015, the Northern Ireland Office (NIO) published a policy paper outlining the measures to be included in the Northern Ireland (Stormont House Agreement) Bill that will be presented to Parliament on 12 October 2015. This Bill will legislate for a number of commitments made by the UK government in the Stormont House Agreement (SHA) on 23 December 2014 relating to dealing with the past and institutional reform. On dealing with the past, this Agreement calls for the creation of a series of new institutions, including an Independent Commission on Information Retrieval (ICIR).

The SHA describes the ICIR as an independent body established by international treaty between the UK and Irish Governments that will enable victims and survivors to seek and privately receive information about the Troubles-related deaths of their next of kin. Over the past few months, the plans for the ICIR have sparked considerable controversy in the media focusing primarily (and somewhat misguidedly) on the whether this Commission will be able to offer amnesty to persons responsible for crimes connected to Troubles-related deaths. The short answer to that question is ‘no’ and I will explain below why this is the case. Much of this speculation arguably resulted from the limited amount of detail on the ICIR in the SHA and the absence of any official consultation on its provisions in the months since the Agreement was reached. The NIO paper is the first official publication to outline what form the ICIR will take. As the ICIR will be established by a treaty between the British and Irish governments, which will then be implemented in legislation in each jurisdiction, it is assumed that the NIO paper reflects the consensus position reached by both governments on the ICIR.

Producing the Model Bill

During 2015, I have been working on the ICIR as part of a team of academics (from QUB and TJI) and practitioners (from CAJ) that have drafted an unofficial Model Bill on the past-related elements of the SHA (including a Model Treaty on the ICIR). Our aims in undertaking this work were:

• to explore how the Agreement could be implemented in practice, in a way that would be human rights compliant and answer the needs of victims and broader society
• to seek to influence the official drafting of legislation while reflecting a human rights based approach and the perspectives of civil society
• to stimulate public debate on the form that the past-related institutions should take

For these reasons, we decided to put forward practical proposals within the parameters of the Agreement, rather than producing what we would think of as a perfect model. We shared a draft of the Model Bill at a high profile conference in May 2015 and the final text was launched in September 2015. The Model Bill and the Explanatory Notes are available on the CAJ website.

Given that the Model Bill was drafted to comply with the terms of the SHA, it is unsurprising that there are areas of convergence between our proposals and those contained in the NIO policy document. However, there are also areas of significant divergence. This post will use the Model Bill and Treaty as a basis to evaluate the proposals outlined in the NIO’s policy paper in respect of some of the most significant issues for ensuring the independence, legitimacy and effectiveness of the Commission.

Who can be a Commissioner?

Ensuring ICIR’s independence will be vital to its credibility and likelihood of being able to successfully retrieve information for victims’ families. A key component of independence relates to the appointment and tenure of the Chair and other Commissioners. The SHA is largely silent on the eligibility criteria for the Commissioners, stating only that the Chair be of international standing. The NIO Policy Paper gives slightly more detail stating that collectively the commissioners should ‘have experience of: working with victims and survivors; legal and judicial proceedings; and security and policing’.

It is welcome that the NIO policy paper sets out the necessary composite skill set of the Commissioners. However, in our Model Bill we sought to create more robust eligibility criteria to ensure that appropriately experienced and independent persons are appointed. We recommend that all Commissioners:

• have qualities and experience which are likely to command the respect and confidence of all participants in the functions of the Commission, including victims and survivors, governments, security services and former members of paramilitary organisations
• be independent, and perceived to be independent, of all persons likely to be subject to information retrieval procedures
• be impartial, and perceived to be impartial
• have experience and skills which make the Commissioner suitable to handle sensitive information and to make judgments about its reliability;
• neither have nor expect to have any financial or other interests that are reasonably likely to conflict with the exercise of their functions as Commissioner

In line with international best practice standards on truth recovery we further recommend that both governments seek to ensure that at least two of the commissioners are women.

What should be the functions of the ICIR?

The SHA only briefly states that the commission will be established to ‘enable victims and survivors to seek and privately receive information about the deaths of their next of kin’. The NIO policy paper simply restates this objective and does not provide a detailed list of the Commission’s functions. However, the following functions are referred to at different points in the policy paper:

• developing a network of intermediaries who can be approached to identify individuals who may have information relating to Troubles-related deaths and who may act as an interlocutor in providing information to the ICIR
• establishing procedures to check the information received by the ICIR before reporting to families, in order to be satisfied that it is reasonable to rely on it. This may include use of a variety of information sources, interview and analytical techniques.
• dealing sensitively with families’ requests for information, including explaining the particular role of the ICIR and the outcome and support they may expect
• supporting families in identifying the information they are seeking, where appropriate
• producing reports for victims and survivors
• reporting to the IRG and supporting governments

Much of the day-to-day functions of the ICIR will be established once the Commission is created. For that reason, our Model Treaty suggests that among the ICIR’s initial task should be to establish a Code of Practice in consultation with relevant stakeholders. However, we also felt that was necessary to specify some functions of the Commission within the Model Treaty, which include some of the functions contained in the NIO paper. We also believe that the ICIR should conduct outreach with all key stakeholders throughout its work in order to build awareness of the powers of the ICIR and to encourage people to engage with it. We further recommend that it should be appropriately staffed and resourced to enable it conduct research and analysis to identify possible sources of information and verify information received, and to provide meaningful support to victims and survivors during and where appropriate after their engagement with the ICIR.

Confidentiality for Information Providers and the Fate of the Archives

The SHA envisaged that engagement with the ICIR would be voluntary for information providers. This means that the ICIR could not have the power to compel testimony. Instead, to enable the ICIR to build trust with any possible individual or intermediary information providers, the SHA had requirements that in order to ensure confidentiality the ICIR will:

• be entirely separate from the justice system
• not disclose information provided to it to law enforcement or intelligence agencies
• not disclose the identities of people who provide information

These guarantees were restated in the NIO policy paper, which emphasised that confidentiality was also important given that the ICIR does not test information to an evidential standard and any disclosure of the identities of alleged perpetrators could prejudice legal proceedings against them. The NIO went further in stating that Commissioners and staff will be placed under a statutory non-disclosure duty, breach of which will be punishable by law. We welcome this additional safeguard of confidentiality and have included similar measures in the Model Bill and Treaty.

However, our proposals diverge from those of the NIO with respect to the fate of the archives. The NIO proposes that to ensure confidentiality, the raw material and operating files held by the ICIR would be destroyed upon completion of its work. This will not include its reports to families. We are mindful that a guarantee to destroy information might reassure those considering providing information to the Commission; however, our proposals instead make arrangements for the archives to be held securely and confidentially for 50 years. We felt this was necessary as the ICIR has the potential to gather a wealth of information that may be useful for understanding Northern Ireland’s history in the generations to come.

Inadmissibility and the Absence of Amnesty

The SHA stipulated that ‘information provided to the ICIR will be inadmissible in criminal and civil proceedings’. Like the confidentiality arrangements, these inadmissibility requirements are designed to encourage possible information providers to cooperate with the Commission and they are based upon similar guarantees given to persons who provide information to the Independent Commission for the Location of Victims’ Remains.

The SHA made clear that individuals who provide testimony to the ICIR are not granted any form of amnesty or immunity from prosecution and that, should evidence arise from other sources, individuals who cooperate with the Commission could still face prosecution for any crimes committed. This is the case even where the new information relates to the crimes that were the subject of the information provided to the ICIR. In other words, under the inadmissibility provisions, it is only the information provided that is protected, not the individual who provided it.

In its policy paper, the NIO extended the inadmissibility provisions to coronial proceedings. It further stated that the ICIR ‘will be under a statutory duty to avoid having a prejudicial effect on legal proceedings’. It continues that this duty should govern all the ICIR’s operations, including the timing of the release of reports to victims’ families.
In keeping with the SHA, and due to our belief that it is necessary in order to encourage information providers to come forward, our Model Bill and Treaty also include robust inadmissibility provisions.

Disclosure

The SHA was silent on the duties of public authorities to disclose information to the ICIR. However, it did provide that ‘the ICIR will … be free to seek information from other jurisdictions, and both governments undertake to support such requests.’ The NIO policy paper goes into more detail on this issue, stating that:

• engagement with the ICIR by public authorities will be voluntary
• the Bill and the equivalent Irish legislation will provide a mechanism to ensure that the ICIR is able to report to families without undermining its duty not to prejudice safety in, and the security of, the UK or Ireland. This mechanism will allow the ICIR to consult with the UK Government and Irish Government on whether reports that it proposes to disclose would pose such a risk in their respective jurisdictions.

These provisions leave it to public authorities to decide whether to disclose information to the ICIR and have the potential to limit information that the ICIR can disclose to victims’ families.

In contrast, our Model Bill and Treaty stipulates that ICIR must be empowered to compel the production from public authorities of any information that it requires in the exercise of its functions, including from the Historical Investigations Unit. We felt that it is crucial that the ICIR be able to access sufficient sources to enable it to verify as far as possible the information it receives.

Information Verification

The SHA does not provide for the ICIR to have investigative powers nor does it address the extent to which information received by the ICIR should be analysed and verified before being transmitted to victims and survivors. In its policy paper, the NIO stipulates that the ICIR will not have investigative powers and on this basis, it states that the ICIR ‘cannot be expected to verify information to the same standard of testing that would be expected in the criminal justice system’. However, the NIO policy paper recognised that the Commission would need to establish procedures for ‘checking the information it receives before reporting to families, in order to be satisfied that it is reasonable to rely on it’. It notes that such information checking ‘may include use of a variety of information sources, interview and analytical techniques.’

As I have previously explored on this blog, the drafting team for the Model Bill and Treaty agreed that in order for the ICIR to operate in a manner that is rigorous, credible and sensitive to victims and survivors, it is crucial that information received by the Commission is verified as far as possible before being transmitted to families. We suggest that the Code of Practice created by the Commission should elaborate the methods of verification and the Model Bill includes provisions to ensure that the ICIR is appropriately staffed and resourced to conduct this work. We also recommend that reports to victims’ families identify the steps taken to verify information in order to allow families to judge for themselves how much faith they should place in the information received and to ensure transparency which is an overarching principle articulated in the SHA.

Duration

The SHA states that the ICIR should operate for no longer than five years and this position is reflected in the NIO policy paper. We were concerned that this might be too short a time period as the experience of the Independent Commission for the Location of Victims’ Remains suggests that it can take time to build trust with persons who have information. In addition, we are conscious that some victims may wish to allow the HIU to complete its investigations into their case before turning to the ICIR. As both bodies are operating in parallel, this may run the risk that the five-year limit would not leave the ICIR sufficient time to fulfil all requests for information retrieval. Our Model Bill therefore includes the possibility that the Secretary of State may extend the work of the ICIR.

Importance of Getting the ICIR Right

Many families who lost relatives during the Troubles have yet to receive adequate information regarding the circumstances of their relatives’ death. The ICIR has the potential to provide an avenue for information coming to light that may not be available by other means. This in itself could potentially provide some comfort to victims and survivors. In addition, where the ICIR are able to identify the institutions or organisations responsible for the death this may provide a significant measure of accountability, particularly in cases where there is insufficient evidence to proceed to prosecution. Furthermore, the possibility of the ICIR yielding rich information on why particular crimes were committed may suggest useful areas of inquiry for the thematic analysis to be conducted under the auspices of the Implementation and Reconciliation Group. Finally, the ICIR could provide a forum for those with information to contribute voluntarily to dealing with Northern Ireland’s past. This may make an important contribution to societal healing where it allows perpetrators to make some form of amends for their actions and also other members of the public to unburden themselves of information that they were previously afraid to disclose. However, for the ICIR to fulfil its potential in helping victims and survivors as well as Northern Irish society deal with its past, it is fundamental that the ICIR be given appropriate powers, personnel and resources to enable it to conduct its work rigorously, independently, fairly and transparently.

Other members of the Model Bill drafting group have posted in relation to other SHA institutions. See Anna Bryson’s post on independence and the Oral History Archive and Daniel Holder’s post The Historical Investigations Unit (HIU): assessing the NIO policy proposals

Louise Mallinder is a Professor in Human Rights and International Law at the Transitional Justice Institute, Ulster University. Her research focuses on transitional justice, particularly relating to questions of amnesty and accountability. Louise is also a Co-Chair of the American Society of International Law Interest Group on Transitional Justice and the Rule of Law and is a member of an interdisciplinary committee of the Royal Irish Academy. Outside academia, Louise is Chair of the Committee for the Administration of Justice.

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