One of the realities of the legacy of the past and moving forward the institutions created in the Stormont House Agreement is that they are the only game in town. There is no plan ‘B’ and no realistic prospect of any alternative arriving in the foreseeable future.
The Commission welcomes the draft consultation and legislation as a positive step forward. We also recognise that further work is needed to ensure the key principle within the draft Bill ‘that human rights obligations should be complied with’ is delivered in practice. Our advice provides over 80 recommendations and sets out in detail what we believe is required to make the proposals human rights compliant.
Our analysis of the NIO’s consultation document and draft bill is based on the bedrock of human rights principles allied to pragmatism of trying to provide a fair wind to see outstanding investigations, truth recovery, legacy inquests and the collection of historical narratives under way as quickly as possible. I am aware that even under the most optimistic timetable the Historical Investigations Unit is unlikely to be opening its first case until well into 2020.
There are of course, wider politics at play beyond Northern Ireland as some Westminster politicians continue to call for a statute of limitations to be applied particularly for active military personnel in Iraq, Afghanistan and Northern Ireland.
In April 2017 the Commons Defence committee issued its report into investigations into fatalities in Northern Ireland involving British military personnel. The report set out a number of options including enacting a statute of limitations covering all Troubles related incidents up to the signing of the Belfast (Good Friday) Agreement. This provision would apply to former members of the armed forces and be coupled with a truth recovery mechanism. This was the option recommended as the way forward by the Select Committee.
The Secretary of State sought the Commission’s advice on the select committee’s conclusion and the Commission set out the human rights legal position. In effect, the ECHR requires an effective official investigation under Article 2 (the right to life) which, following judgments covering Jordan v UK and beyond, must be independent, capable of identifying perpetrators, allow for public scrutiny of the investigation or its results, and involve the next of kin to the extent necessary to safeguard their interests, leaving in mind other people’s right to life may be at stake in the investigation. Ironically, given our circumstances, one other ingredient is required for an Article 2 compliant hearing, namely, a prompt investigation.
Despite calls in some quarters, the human rights position remains clear that there must be some prospect of a criminal justice process at the end of the investigation. The Commission’s view was that the Sentencing Act provisions applied at the time of the Belfast (Good Friday) Agreement are in line with human rights standards and do cover police, army and other military personnel though there is no reason to put it beyond doubt. Moreover, the Commission advised that the Sentencing Act arrangements should be applied to acts carried out prior to 1973 – a recommendation taken up by the NIO’s consultation document.
I recognise the reality that the number of prosecutions surrounding events that are now thirty to forty years old will be very small indeed – nonetheless, there must still be the prospect of criminal justice redress applied across the board. Tempering expectations is one thing, seeking to sweep the past away in investigation and criminal justice outcome terms is quite another. If there is one thing we have learned about our past it is intergenerational. Some families want truth, others want justice, some want reparation, others want all three and of course, some want to move on and simply put the impact of the violence behind them. These desires can often differ within families, never mind between them. None of the differing responses lacks legitimacy, nonetheless, a human rights approach requires independent, effective investigations. Moreover, the call from eminent politicians that priority should be given to victim compensation over investigation is predicated on not making any more money available to deal with the past comprehensively. If more money was invested then, such a trade-off would not be required.
The Commission’s response to the consultation document recognises the need to meet human rights standards while being grounded in practicalities. It addresses the omissions in the document including the need to provide for a process for Article 3 investigations (freedom torture, inhuman and degrading treatment) where the threshold is met without this becoming a basis for delaying or holing below the waterline the current proposals. Other omissions highlighted include the long overdue introduction of a pension for severely injured victims in Northern Ireland, the Stormont House Agreement commitment to a Mental Trauma Service and specific legislative provision to ensure the effective participation of woman in post-conflict procedures, accepting the application of UN Security Resolution 1325. On legacy inquests, the Commission has long called for the necessary funding to be put in place to deliver the outstanding inquests. The Lord Chief Justice’s pro-active and public call to make progress has given families a degree of confidence in the inquest process and created a window of opportunity to make progress – an opportunity which should not be squandered by the Secretary of State in the absence of the Northern Ireland Executive.
In dealing with the past, the perfect should not be the enemy of the good. We know that any mechanism chosen for dealing with the past will leave many people dissatisfied, with expectations unfulfilled and will be contentious at both a political and community level. Nonetheless these realities do not deflect from the need for a proper legacy process, adequately resourced, which meets human rights standards and addresses the past to allow us to build a future
Read the Commission’s full advice here: http://www.nihrc.org/publication/detail/nihrc-submission-to-nios-consultation-on-addressing-the-legacy-of-northern