At the beginning of this year as the dust was just settling on the Stormont House Agreement (SHA), this blog argued that the devil would be in the detail of the ultimate legislation as to whether the HIU would have the necessary powers and independence to carry out its role.
It is now some of the detail is being published by government. The Northern Ireland Office last week published its ‘Northern Ireland (Stormont House Agreement) Bill 2015 ‘Summary of Measures’ document. This covers the HIU, but also two of the three other legacy institutions to be established under the Stormont House Agreement – the Independent Commission on Information Retrieval (ICIR) and the Oral History Archive (OHA). Government is not proposing the third institution – the Implementation and Reconciliation Group (IRG) – be part of the legislation.
This paper followed an earlier ‘position paper’ by the Department of Justice covering the HIU and inquests distributed at stakeholder workshops it ran. Attempts to link progress on the legacy institutions to welfare cuts appear to now have been defeated and there is every indication as things stand that the UK Government will proceed to introduce the legislation into Westminster this October as had originally been planned. What has not happened is promised consultation on an actual draft piece of implementation legislation, which would really have clarified the detail of what is proposed, instead this piece will examine some key issues for the HIU in the NIO position paper.
Outside the official process there has also been plenty of activity. CAJ and academic experts from Queens and UU drafted our own unofficial Model Bill to demonstrate what the legislation should look like if implemented in good faith and in a human rights compliant manner. This covers all four SHA legacy institutions, including the IRG. In partnership with Amnesty and the two universities a conference was held on a draft of this unofficial legislation. A report was produced and recently launched, as were a set of Gender Principles for dealing with the legacy of the Past developed by the Legacy Gender Integration group. All of these documents can be accessed on the CAJ website.
This piece will critique the NIO policy document in relation to five key issues for the HIU namely: HIU Powers to obtain official documents, HIU caseload; HIU powers of onward disclosure; Staffing, independence and equality; HIU independence- governance.
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 Louise Mallinder’s post on the Independent Commission for Information Retrieval
Powers to obtain official documents
The starting point for all HIU investigations, whether into republicans, loyalists or the state will be the existing files and materials held by the state. Previous legacy investigations have been hampered by lack of access to official documents but in the SHA the UK government makes an unequivocal commitment to full disclosure to the HIU, with no ‘national security’ or other qualification. In order to make this commitment a reality the HIU will need (separate to its broader policing powers) a clear disclosure power compelling state agencies to hand over the documents it needs for its investigations, including powers that set aside obligations of secrecy. Such powers already exist for agencies like the Police Ombudsman or Criminal Cases Review Commission, and are provided for in the Model Bill.
Clause 22 of the Model Bill provides a detailed disclosure power composed of all the elements we deemed necessary to ensure the commitment to full disclosure was realised it:
- Places a duty on a public authority to comply within a reasonable timescale with a request to provide or allow access to the HIU to information it holds;
- Sets up an internal specialist disclosure unit in the HIU to facilitate such requests;
- Explicitly provides that other legislation (e.g. the Official Secrets Act) or other obligations of secrecy/confidentiality does not prevent disclosure to the HIU;
- Empowers the HIU to direct that relevant documents held by public authorities are not destroyed;
- Makes it an offence for public authorities to fail to comply with a disclosure request or conceals, alters or destroys the information it holds.
The official policy paper reiterates the UK Governments commitment to full disclosure to the HIU and places no ‘national security’ or similar qualification on disclosure to the HIU. It states that the official bill: “will include a duty on UK government bodies to provide the HIU with such information, documents or other material, information and documentation as it may reasonably require for the purposes of, or in connection with, the exercise of its functions.” It then goes on to state similar disclosure duties will be placed on devolved bodies including the PSNI before, confusingly, running in to the separate issue of the policing powers the HIU will also have available for its investigations. In essence therefore in assessing the official proposals on this point, so far so good, except that the devil will still be in the detail as to whether the legislative provision will be adequately detailed to deal with all of the matters enumerated in the Model Bill.
Whilst it obviously won’t be dealt with by a Westminster bill there is also the question of disclosure by the Irish authorities to the HIU. The NIO paper (presumably with Dublin’s consent) does deal with this issue – stating that arrangements are being put in place to ensure the HIU will have full cooperation from ‘all relevant Irish authorities’. It states Dublin is committed to parallel legislation to the Westminster bill or even a treaty ‘if necessary’ to make this happen. Unless clear disclosure duties are already covered in existing legislation or policing cooperation treaties – such a move would be necessary. This is also a welcome commitment. Like above the devil will of course be in the detail of the actual legislation.
The HIU Caseload
A second issue concerns which cases the HIU be empowered to deal with and what will be the scope of its investigations. In relation to the latter the clause 10 of the Model Bill sets out on the face of the legislation a range of matters an Article 2 compliant investigation must include, to avoid the concept of ‘criminal investigation’ being narrowly construed. The NIO document does not indicate that the official legislation will do this. It does however state that the HIU will have to produce and publish a ‘Statement’ on how it would conduct its investigations, including how it will ensure they are Article 2 compliant.
The SHA provides that HIU is to investigate outstanding ‘Troubles-related deaths’, taking on both the outstanding HET and Police Ombudsman caseloads (both of which related to pre-1998), and other cases, which have been previously investigated, where there is ‘new evidence.’ There is no cut-off date in the SHA for these cases. There are international obligations to independently investigate deaths (ECHR Article 2), as well as other matters such as torture (ECHR Article 3). We have reflected this in the Model Bill under clause 11. This would empower the HIU to take on some post-1998 cases and ECHR Article 3 cases in certain circumstances to ensure compliance with international human rights obligations.
The official proposals stick to investigating deaths and state that the HIU’s remit will have a cut of date of deaths which occurred before the 10 April 1998 (the date of the Belfast/Good Friday Agreement). It remains unclear how the state intends to discharge both its Article 3 obligations and independent investigative obligations in those post-1998 cases whereby neither the Ombudsman nor PSNI would have the remit or required independence to deal with them. The NIO document reiterates that the HIU will take on the outstanding HET and Police Ombudsman legacy caseloads and that this will include HET cases that require re-examination. There is also provision for the HIU re-investigate cases on the request of families in light of a ‘new fact’ emerging. It will be important to scrutinize just exactly how these provisions are framed in the actual legislation to fully understand their scope.
In relation to ‘new fact’ provisions the international obligation under the ECHR is that “where there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures” (see Brecknell v UK )
Another feature of the NIO document is that it goes to extraordinary lengths to state that HIU investigations into criminal matters will be operationally separate from investigations into Police misconduct. This appears designed to make explicit that HIU policing powers are not available when misconduct is being investigated, yet it is not clear why this would require such a degree of operational separation. Furthermore the above international obligation is to investigate on the basis of evidence which could lead to the ‘prosecution or punishment’ of perpetrators. The word ‘punishment’ is important as this includes disciplinary sanctions. It would appear therefore to fall below that standard if HIU investigations are only allowed to examine RUC misconduct, and not misconduct of any other state agency.
HIU powers onward disclosure
The SHA provides that the only statutory duty on the independent HIU not to include certain information in its reports to families and publications will be that of ensuring it does not make disclosures that would jeopardize the safety of individuals. This is reflected in the Model Bill as a duty on the HIU Director. This provision is also provided for in the NIO policy paper, save that the power is vested in the Department of Justice rather than the HIU, which gives a Minister a role in what are to be independent reports.
What is more concerning however, and entirely outside the letter of the Stormont House Agreement, is that the policy document then comes clean that in addition to this power the Secretary of State herself is to be granted a power to veto the contents of reports on the deliberately vague ground of ‘national security’. I have written in more detail in this matter in a separate post on the Eamonn Mallie blog.
Staffing, independence and equality
The HIU is to be an independent body. Under Article 2 there is a legal obligation that those working in the HIU have no connection to the persons or organisations that may be the subject of their investigations. The practice of organisations like the Police Ombudsman in its legacy investigations is that former members of the RUC or security forces are usually debarred to prevent conflicts of interest arising. Our Model Bill has followed this approach, and also debars persons who at any time have been paramilitaries from employment with the HIU. The NIO policy paper states however that the official legislation will not debar persons with former policing or security roles. It does however go on to state the obvious that recruitment will need to be within what is permitted within the law (i.e. Article 2) and defers that responsibility to the HIU Director. The NIO document also provides that the HIU will be able to include secondments to its staffing, which again may raise independence questions.
A second issue is that investigative bodies have tended to be overwhelmingly male dominated. Our Model Bill seeks to counter this through a statutory duty to take reasonable steps to ensure a gender balance, and to ensure staff have necessary experience and aptitude to take a gender-sensitive approach. It is not clear what provisions the official legislation will have on either of these matters. The NIO document is silent on such matters.
Independence – governance
The SHA provides that the Northern Ireland Policing Board will oversee the work of the HIU and further guarantees the HIU will be an independent body. Our Model bill dealt with this in a number of ways including provisions for financial independence by way of monies being allocated by Parliament, adequate powers for the Policing Board to oversee the HIU and for the HIU Director to be a ‘corporation sole’.
The ‘corporation sole’ model – used for the Police Ombudsman and Director of Public Prosecutions – vests all the power of the institution in the sole office holder. We took the view that, providing there is not a perverse appointment, this model is the best in relation to ensuring the HIU’s independence and preventing interference by a sponsor department.
Back in 2012 the Department of Justice had proposed changing the model for the Police Ombudsman away from ‘corporation sole’ to a multi-member commission. CAJ counselled against some sort of collective body given as heading an investigative unit is a quasi-judicial role in which the post holder must satisfy themselves that the investigation into the relevant matter has been robust and all evidential opportunities have been followed up rather than one to be subject to some sort of ‘negotiation’ between members with different perspectives. CAJ stated “It is right that this kind of function is exercised by an individual who is publicly accountable for it. It would be quite wrong for such conclusions and decisions to be subject to a process of debate and compromise within a collective body. In investigating […] the issue is not reflecting the different interests, currents and attitudes within Northern Ireland society but of exposing wrongdoing without fear or favour and of vindicating proper actions equally robustly when appropriate.“ The proposal was rejected and the Police Ombudsman remains a corporation sole.
The SHA is not specific but NIO policy document sets out that the HIU will not be a ‘corporation sole’ but rather a ‘body corporate’ sponsored by the Department of Justice. It goes on to elaborate that the HIU “will consist of both Executive and non-Executive members within its management board, including the HIU Director.” Whilst the document does state the HIU Director will have ‘operational control’ this does appear to move towards the model of having a multi-member commission. There are other provisions of concern in relation to governance. The Department of Justice is to have a key role in funding the HIU, which given its track record in relation to legacy funding to the Police Ombudsman is going to raise concerns among families. Finally, and entirely outside the terms of the SHA, which is crystal clear the oversight body for the HIU is the Policing Board, the NIO policy document seeks to restrict the role of the Policing Board to only oversee the HIUs work when it is working on ‘transferred’ matters (that is devolved matters). It sets out that whenever HIU investigations touch on ‘national security’ or any other ‘non-transferred’ matter the NIO want the line of accountability of the HIU to then switch to the Secretary of State herself. This is despite the very actions of government and its agencies being among the matters under investigation by the HIU.
All in all there are some welcome clarifications in the NIO document about how the legislative basis for the HIU will be shaped, but also some matters of concern in the run up to the legislation becoming public and the detail being laid bare.