SECRETARIAT GENERAL

SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES

Contact: Clare Ovey Tel: 03 88 41 36 45

Date: 10/11/2016 DH-DD(2016)1213

Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.

Meeting: 1273 meeting (6-8 December 2016) (DH)

Communication from a NGO (The Pat Finucane Centre) (27/10/2016) in the McKerr group of cases against the United Kingdom (Application No. 28883/95).

Information made available under Rule 9.2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.

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Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.

Réunion : 1273 réunion (6-8 décembre 2016) (DH)

Communication d’une ONG (The Pat Finucane Centre) (27/10/2016) dans le groupe d’affaires McKerr contre le Royaume-Uni (Requête no 28883/95) [anglais uniquement]

Informations mises à disposition en vertu de la Règle 9.2 des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables.

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The Pat Finucane Centre Unit B8, Rath Mór Bligh’s Lane, Derry Northern Ireland BT48 0LZ

27 October 2016

Via email to: [email protected]

Dear Ms. Brown,

The Pat Finucane Centre (PFC, Derry/Armagh, Northern Ireland) in conjunction with Justice for the Forgotten (JFF, Dublin) wish to make the following Rule 9 submission to the Committee of Ministers on its supervision of the following cases relating to security force actions in Northern Ireland:

Jordan v the United Kingdom, judgment final on 4 August 2001 Kelly and Ors v the United Kingdom, judgment final on 4 August 2001 McKerr v the United Kingdom, judgment final on 4 August 2001 Shanaghan v the United Kingdom, judgment final on 4 August 2001 McShane v the United Kingdom, judgment final on 28 August 2002 Finucane v the United Kingdom, judgment final on 1 October 2003 and Hemsworth v UK, judgment final on 16 October 2013 McCaughey & Others v UK, judgment final on 16 October 2013

The PFC is a non-party political, anti-sectarian human rights group advocating a non- violent resolution of the conflict on the island of Ireland. We believe that all participants to the conflict have violated human rights.

The PFC asserts that the failure by the British state to uphold Article 7 of the Universal Declaration of Human Rights, “all are equal before the law and are entitled without any discrimination to equal protection of the law”, is the single most important explanation for the initiation and perpetuation of violent conflict.

We provide an advocacy, advice and support service to families, bereaved/injured as a result of the conflict, who wish to engage with statutory agencies including the (now- defunct) Historical Enquiries Team (HET), the Office for the Police Ombudsman of

1 2 Northern Ireland (OPONI) in Northern Ireland, and An Garda Síochána in the Republic (through JFF).

The aim of our work is to assist families in establishing the facts surrounding the death/s of their loved one/s or physical/psychological injuries sustained. We are also engaged, on both sides of the border, in working with individual families in a project known as the Recovery of Living Memory Archive (RoLMA).

We currently provide this service to approximately 200 families across Ireland through three offices in Derry, Armagh and Dublin (in partnership with Justice for the Forgotten). Many of these cases engage Article 2 ECHR issues.

We respectfully submit this Rule 9 submission for consideration at the 1273th meeting of the Ministers’ Deputies in December 2016.

The PFC has made previous Rule 9 communications to the Committee of Ministers (CM) on the same group of cases in relation to what are now called the “package of measures” agreed by the UK. Our most recent submission was made in April 2016. We make this submission to update the CM on developments, or more appropriately, the lack of them, regarding the UK government’s implementation of the “package of measures.”

Legacy Inquests

In our submission to the CM dated 21 April 2016 we referred to the plan by the Lord Chief Justice for Northern Ireland (LCJ), Declan Morgan, to reform the legacy coronial system1. The LCJ’s proposals followed an “extensive process of engagement with the families, the international community and others to develop a proposed way forward to tackle the outstanding legacy inquests”. 2

This considered plan would allow for a more expeditious hearing of the 56 outstanding conflict-related inquests (relating to over 80 deaths) in an Article 2 compliant manner over the next five years.

Currently the coronial system can only facilitate two conflict-related inquests a year. Without the implementation of the LCJ’s plan it will take decades to clear the backlog of cases. The LCJ clearly stated that “This would not comply with the legal requirement to deal with the backlog of cases within a reasonable timeframe.3”

However eight months after the LCJ outlined his plans for reform, they remain in limbo with no action taken on implementing them. Arlene Foster, leader of the DUP and First Minister, has used her powers to prevent the proposals from even being discussed by the Northern Ireland Executive (the Executive). This means agreement is impossible on releasing the financial package necessary for their implementation. In May this year Ms Foster stated:

1 https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680649551 page 2. 2 https://www.courtsni.gov.uk/en-GB/Publications/Press_and_Media/Documents/Press%20Release%20- %20The%20Lord%20Chief%20Justice's%20speech%20marking%20the%20opening%20of%20the%20new%20legal% 20year%202016/j_j_LCJ's%20Address%20-%20Full%20Speech%205%20Sep%202016.htm 3 ibid 2 3 "Unfortunately a lot of innocent victims feel that their voice has not been heard recently and there has been an imbalance in relation to state killings as opposed to paramilitary killings…… I think the rights of innocent victims are very key in this and I will not allow any process to rewrite the past.”4

It is our belief that Arlene Foster has blocked the proposals because her party are politically unhappy that many of the outstanding inquests concern deaths caused by state forces, in particular the British Army.

The PFC believes this amounts to an unacceptable discrimination against families on the grounds that their loved-ones were killed by state forces or in collusion with state forces.

The DUP are using their executive powers wrongfully to prevent these cases being examined as any impartial investigation will expose what we, and many others know, that the British Army and RUC killed many unarmed civilians in unjustifiable circumstances, and these deaths were never properly investigated.

This is a dangerous blurring of the fundamental constitutional boundaries that should exist between executive and judicial powers.

A question that must also be asked is whether the First Minister is calling the independence and probity of Coroners into question by suggesting they would be involved in “rewriting the past”?

It is important to note that, prior to ordering any new inquest, the Attorney General for Northern Ireland must examine the evidence and satisfy himself that an inquest is necessary. In each of the 56 legacy inquests granted to date this has been the process.

By refusing to release the funding necessary to reform the inquest system, the DUP is circumventing the orders of the Attorney General and the rights of families under Article 2 of the ECHR.

The PFC advocates on behalf of a number of families who are currently waiting for inquests to start into the deaths of their loved ones. In one instance, family members attended twenty-plus preliminary hearings over the course of several years.

One family member has had to take unpaid leave from work to attend these hearings without any substantive movement forward in the inquest. Numerous reasons, some apparently spurious, have been given for not moving forward.

On one occasion, for example, a reason for delay was that Counsel was unable for technical reasons to open his e-mails that morning and therefore was unaware of his instructions. This has greatly added to the bereaved family’s hurt and frustration.

In 2013, the Attorney General ordered a new inquest into the murders of Elizabeth McDonald and Gerard McGleenan in Keady on 16 August 1976. The bomb attack which resulted in their deaths is linked to approximately 120 deaths (including the 34 people killed in the Dublin and Monaghan bombings on 17 May 1974) at the hands of what has become known as the ‘Glenanne Gang’, a group of loyalist paramilitaries which included 13 serving/former members of the Royal Ulster Constabulary (local police force) and 16

4 http://www.belfasttelegraph.co.uk/news/northern-ireland-assembly-election/dup-leader-arlene-foster-why-i-blocked- plans-to-speed-up-troubles-probes-34683461.html 3 4 serving/former members of the Ulster Defence Regiment (a locally-recruited regiment of the British Army).

While this inquest relates specifically to the deaths of Elizabeth and Gerard, the families of all those affected by the actions of the ‘Glenanne Gang’ feel they have a lot to gain from the hearing of this inquest. They believe that light may also be shone on the deaths of their loved ones.

The Attorney General ordered the new inquest due to information that became available to the families as a result of the Historical Enquiries Team’s (HET) report into the bomb attack. The families were informed in this report that information was available before the attack which could have prevented it.

The HET report also outlined that surveillance had been put in place on the farm of a serving member of the RUC Reserve5, the surveillance was removed, the bomb was then moved into place and detonated with devastating effect.

There was also information available which would have enabled the conviction of those responsible but this information was not provided to the investigating officers by the RUC’s Special Branch.

These are serious concerns for the families and they felt that the ordering of a new inquest would have answered some of the outstanding issues and concerns they still have.

It should also be noted that those most affected by this inquest, Elizabeth’s husband and Gerard’s mother, are both in their 90’s and the longer the delay the less likely they are to see a resolution to their concerns. This inquest like most others is not moving forward due to a lack of funding.

These are only two examples of the out-workings of the lack of funding for the Coronial system.

The Secretary of State for Northern Ireland, James Brokenshire MP, has acknowledged that the current Coronial system is not equipped to deal with the number and complexity of cases and is of the view that this is an issue solely for the Executive, who “have responsibility” for inquests.6"

The PFC strongly disagrees with his assessment. We submit that the agreement of the Executive is not necessary to implement the LCJ’s proposals. It is our firm view that the requirements to fulfil the UK Article 2 obligations firmly rests with UK government, exercisable through Westminster.

It is the UK government, not the devolved power-sharing Executive, who are the signatories of the ECHR. Further, it was the UK government that was found to have breached their obligations under the ECHR in respect of the McKerr group of cases.

We believe that the UK government should release the funding required to implement the LCJ reforms to the Northern Ireland Department of Justice.

5 This is the RUC Reservists that is named on the Police Ombudsman’s Report into the Loughinisland murders on 18 June 1994 (see below) 6 http://www.bbc.co.uk/news/uk-northern-ireland-37442184 4 5 We note that a number of families who have been granted inquests have initiated legal proceedings against the Secretary of State, James Brokenshire, the Executive Office (formerly the office of the First Minister and Deputy First Minister), and the Department of Justice in relation to the ongoing failure to release funding resulting in unacceptable delays in the inquest system.

The families contend the British government has a clear obligation to fund an investigation into these deaths, irrespective of Stormont’s support or absence of support.7

The PFC submits that the UK government is trying to derogate from their ECHR obligations to the power-sharing Executive, and that this refusal to release the funding required to implement the LCJ’s proposals is another example in a pattern of dereogation that we have outlined in our previous submissions.

Further, this appears to be evidence of an attempted creeping distancing from the ECHR prior to the British government’s stated intention of removing itself completely from its European human rights obligations.8

The PFC further submits that until the UK government agrees to fulfil (or are forced to fulfil) their obligations, the DUP will continue to abuse their veto powers for purely political reasons, denying victims their legitimate rights.

The PFC agrees with the LCJ’s assertion that this would be yet another devastating blow to families. 9 LCJ Morgan stated that “We cannot move on while we remain under the shadow of the past, nor should we. But time is not on our side.”

The PFC works with bereaved families who have spent decades campaigning and litigating in order to assert their right to proper, effective and independent investigations into the deaths of their loved ones. Many of these deaths occurred in the 1970’s and 1980’s, and these families don’t have decades to wait for their inquest to be heard.

Police Ombudsman Funding

The PFC has, in earlier submissions, drawn attention to the inadequate funding provided to the Office of the Police Ombudsman of Northern Ireland (OPONI). Not withstanding this lack of funding, OPONI continues to work through the nearly 400 cases currently on its books.

Some of these cases are very complex as evidenced by the recent report into the murders at the Height’s Bar in Loughinisland on 18 June 1994. This report outlined significant collusion between police officers and loyalist paramilitaries. The report also highlighted a large consignment of arms which were imported into the north of Ireland by a combination of the Ulster Defence Association (UDA), the Ulster Volunteer Force (UVF) and Ulster Resistance (UR).

7http://www.irishnews.com/news/northernirelandnews/2016/09/22/news/families-take-legal-action- over-stalled-troubles-inquest-funding-705491/ 8 https://www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human-rights-theresa-may- eu-referendum 9 https://www.courtsni.gov.uk/en-GB/Publications/Press_and_Media/Documents/Press%20Release%20- %20The%20Lord%20Chief%20Justice's%20speech%20marking%20the%20opening%20of%20the%20new%20legal% 20year%202016/j_j_LCJ's%20Address%20-%20Full%20Speech%205%20Sep%202016.htm 5 6 The OPONI report points out that most of the UDA arms were seized with hours of the UDA collecting them. Some of the UVF’s arms were found within weeks of the landing of the arms but that UR’s share has never been found and was not decommissioned following the signing of the Good Friday Agreement. The report goes on to say that the guns that were not seized were later involved in at least 94 murders.

OPONI has a number of complaints from some of the affected families arising from the Loughinisland report and will be required to conduct a major investigation into these and other linked cases.

As mentioned above, the report confirmed that the guns were stored on the farm of a RUC Reservist for some time before being distributed to the UDA, UVF and UR. This RUC Reservist is centrally linked to the ‘Glenanne Gang’ inquiry currently underway by OPONI staff, a major investigation into approximately 120 deaths. Due to the complexity of this case OPONI’s resources are stretched and this may have an adverse effect on other investigations.

In setting up OPONI, the Independent Commission on Policing for Northern Ireland, commonly known as “The Patten Report” said:

“We cannot emphasise too strongly the importance of the office of Police Ombudsman in the future policing arrangements proposed in this report. “The institution is critical to the question of police accountability to the law, to public trust in the police and to the protection of human rights”.

Despite this stricture, OPONI has been effectively starved of funding. OPONI’s total annual budget of £8.3m is just 0.8% of the overall justice budget in Northern Ireland and represents just 1.13% of the policing budget.

The PFC asks how a service which receives barely 1% of the total policing budget can adequately hold the PSNI to account? Further, how can the same service fulfil its vital legacy functions while funded to this minimal extent?

We belief it is imperative that OPONI is given the funding that is required to ensure that the important work that office is undertaking is completed in a timely fashion and to the required standards.

Stormont House Agreement (SHA)

It is now almost two years since agreement was reached on proposals for dealing with the past under the Stormont House Agreement. Including a ‘Historical Investigations Unit’ which would be compliant with Article 2 of the ECHR.

The hopes of hundreds of families were raised by the agreement although it was understood additional work would be needed to make the agreement workable and that the ‘devil would be in the detail’.

Two years later, we are no further down the line. The current sticking point seems to be ‘onward disclosure’ of certain information to families.

6 7 In September 2015 draft legislation which would have established the legacy bodies envisaged under the SHA was widely leaked. The undefined term ‘national security’ was repeatedly cited in the document, not a term that was used anywhere within the SHA.

All human rights NGOs active in Northern Ireland are of the belief that the British government will use ‘national security’ to cover up, not only genuine issues of national security, but also facts that embarrass the government including criminal behaviour by state agents.

Victim’s families are not prepared to let this happen and have lobbied NGOs and politicians to ensure this Bill not be placed before parliament in its current form.

There have been intense discussions involving NGOs on how to break this deadlock but, to date, there seems to be little progress.

The current Secretary of State has said that there will be a consultation period on proposals to implement the SHA. No consultation, however, has yet been announced and there is no indication on what form such a consultation will take, including time-frame.

Further, the British Government failed to co-operate with several official inquiries set up by the Irish government (under Mr. Justice Henry Barron) in the early 2000s into the Dublin/Monaghan bombings and other cross-border attacks.

The PFC’s affiliate organisation, Justice for the Forgotten, represents the families of 48 people who were killed south of the border in Ireland during the conflict. No-one has ever been convicted of any of these murders and many of the bereaved families are left with no recourse to any inquiry at all into their deaths.

The Barron Inquiries made strenuous efforts to obtain relevant information from the British authorities but received no significant information. An Oireachtas (Irish parliament) resolution called for access:

‘ by an independent, international judicial figure to all original documents held by the British Government relating to the atrocities that occurred in this jurisdiction and which were inquired into by Judge Barron, for the purposes of assessing said documents with the aim of assisting in the resolution of these crimes…’

London has ignored three separate calls for full disclosure despite successive Taoisigh (Prime Ministers) and Ministers for Foreign Affairs also raising the issue with their British counterparts on numerous occasions.

Thank you for receiving this submission and we look forward to hearing from you in due course.

Yours sincerely,

Paul O’Connor Project Co-ordinator The Pat Finucane Centre

Clare Brown,

7 8 Legal Officer, Department for the Execution of Judgments of the ECtHR, DGI - Directorate General of Human Rights and Rule of Law, Council of Europe, F67075 Strasbourg Cedex, France

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