A couple of weeks ago the Northern Ireland Office (NIO) published its proposals to implement the provisions of the Stormont House Agreement (SHA) in relation to the legacy of the Troubles. The proposals are intended to pave the way for the introduction shortly in Westminster of new legislation: the Northern Ireland (Stormont House Agreement) Bill 2015.
In parallel to the official process, the CAJ and a group of academic experts from Queens and University of Ulster have 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 Implementation and Reconciliation Group (IRG). As a member of this academic group, I have been particularly engaged in drafting the model provisions on the IRG.
A major omission
For me, therefore, the NIO proposal not to include in their Bill provisions on the IRG is a major omission. It is not just that the IRG will be omitted from their Bill. It does not even get a dedicated section in the NIO paper.
Admittedly, the paper states that “one of the key commitments in the [Stormont House] Agreement is the establishment of the Implementation and Reconciliation Group”. But surprisingly for a “key commitment”, the paper gives the IRG cursory treatment at best, barely a couple of paragraphs in the context of the reporting requirements of other legacy bodies.
The paper baldly adds: “It is not currently envisaged that the IRG will be included in the Northern Ireland (Stormont House Agreement) Bill. However, the UK Government stands ready to assist on matters related to the IRG if requested to do so by the Northern Ireland parties.” All this put together implies some distancing of the UK Government and downplaying of the IRG. But why?
At the two conferences organized by Amnesty International and the two universities on our Model Bill, I have sought to make the case for the IRG’s inclusion in the new legislation. Here are my reasons.
The need to make the IRG happen
The biggest risk of omitting the IRG from the Bill is simply that it will not be established or that its establishment will be threatened by further controversy.
The IRG is not an insignificant body. Its main functions under the SHA will be to:
– oversee themes, archives and information recovery
– commission a report on themes from independent academic experts after five years
– prior to that, to undertake analysis and assessment based on an evidence base for patterns and themes
– conduct this process with sensitivity and rigorous intellectual integrity, devoid of any political interference
– promote reconciliation and support other initiatives that contribute to reconciliation, better understanding of the past and reducing sectarianism; and
– provide the context for the UK and Irish Governments (and others) to consider statements of acknowledgement.
These are self-evidently important tasks. In fact, while the other legacy institutions proposed by the SHA operate in discrete and arguably individualized areas (such as investigation in the case of the HIU), the IRG is the one body which has the potential for overall coordination and promotion of reconciliation.
If the Bill does not make provision for the IRG, its establishment will be left to administrative arrangements to be agreed between the local political parties in Northern Ireland. Its existence will therefore be at the mercy of the politics of the moment and history would suggest that without firm stewardship from the two governments, it may well flounder.
The need to define the IRG’s tasks and methods
While the SHA outlines the IRG’s main tasks, various elements of these need to be pinned down. What will be the nature of the IRG’s oversight? What will be the interaction with the other legacy bodies? Who will fund it? For how long? Although the report on themes is to be commissioned after five years, what precisely does this mean? Can the IRG employ analysts and academics to do preparatory work on the evidence base? And so on.
Some of these questions, such as the handling of the report on themes, could be contentious. It is therefore best to fix these in Westminster legislation, in line with the other past-related elements of the Stormont House Agreement, and to do it at the outset. Once fixed, there will be less scope for the IRG to deviate from its tasks and more chance that the IRG will not only happen but will also function.
The need for independence
Of all the new legacy bodies, the IRG has the most potential to have a political feel, in that the majority of its members are appointed by the political parties. This carries with it the risk of politicization.
There are, however, two safeguards against this. One is that publicly elected representatives will not be eligible for appointment. The second is that the SHA stipulates that its process should be “devoid of any political interference”. In addition, the IRG should act according to the general principles outlined in paragraph 21 of the SHA, which include upholding the rule of law, acknowledging and addressing the suffering of victims and survivors, being human rights compliant, and being balanced, proportionate, transparent, fair and equitable.
But without underpinning this in the Bill, independence and compliance with the principles could be left as a mere aspiration. If the IRG is legally bound to act independently according to the principles, that is a guarantee – or at least a firmer one. Moreover, since it is explicitly envisaged that academics will do the heavy lifting in terms of research into themes and patterns, the IRG will be much more likely to attract academics of the right quality and reputation if they have statutory protection that their research cannot be politically interfered with by the political nominees.
The need for public confidence
The success of all the legacy bodies will depend on the confidence they garner among the victims and survivors, the communities in Northern Ireland and the rest of the United Kingdom, the political parties, and the UK and Irish Governments. There have been so many disappointed expectations. The SHA and the new Bill are a real opportunity to deal with the legacy of the Troubles and to move reconciliation forward through a proper balanced and inclusive process.
So there is an overriding requirement to ensure that all the legacy institutions, including the IRG, are given the best opportunity to create that confidence. This is much more likely to happen if the IRG is not treated as some less significant add-on. With each attempt to deal with the past, the costs of failure are higher. The IRG and the other bodies cannot afford to fail.
The need for confidence of the British and Irish Governments and other key actors in the conflict
In addition to public confidence more generally, there will clearly by an onus on the IRG to secure the confidence of the two governments as well as other key actors in the conflict. The Stormont House Agreement envisages that the two governments will consider statements of acknowledgement based on the work of the IRG and would expect others to do the same.
If in the absence of a firm statutory footing the IRG were to descend into a political football, it is difficult to imagine the two governments, or indeed the other actors, constructing statements of acknowledgement based upon its work. Statements of acknowledgement have been powerful tools in promoting reconciliation in other situations in other countries. It is important that this opportunity is not lost in Northern Ireland through a lack of confidence and credibility in such a key institution – particularly when the means of ensuring that credibility are so easily attained.
The need for clout
If the IRG is not included in the Bill along with the other three new bodies, it is difficult to see how it could carry equivalent political weight. It might find it difficult to fulfil its oversight duties in any meaningful way and to carry weight and influence in wider society. If the IRG is to “support other initiatives that contribute to reconciliation…and reducing sectarianism”, it will need to have clout. And that clout is of course best given through statute.
Add-on or Key Commitment?
So will the IRG be treated as an “add-on” or a “key commitment”? If the IRG is downplayed, that raises a question not only about the IRG but also about the whole approach to deal with the legacy of the past. Will the Bill in practice have the effect of minimizing and restricting the new institutions? Or letting them fully fulfil their mandates as agreed in the SHA? If the latter, and if the IRG really is a key commitment, why shy away from giving the IRG a clear legal basis?
Jeremy Hill was Legal Adviser to the Consultative Group on the Past in Northern Ireland (the Eames-Bradley Group) in 2008-2009. Since October 2014, he has worked as a Visiting Scholar at the Ulster University on mechanisms relating to the past in Northern Ireland.