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Addressing the Legacy of Northern Ireland's Past

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Addressing the Legacy of Northern Ireland's Past Addressing the Legacy of Northern Ireland’s Past: The Model Bill Team’s Response to the NIO Proposals September 2021 THE MODEL BILL TEAM Anna Bryson, Louise Mallinder Kieran McEvoy (QUB) Brian Gormally, Daniel Holder Gemma McKeown (CAJ) SCHOOL OF LAW 2 Contents Executive Summary ....................................................................................................... 4 Background and Content of this Report ............................................................................................................ 4 Chapter 1: An Amnesty for State and Non-State Actors ............................................................................. 5 Chapter 2: An Information Recovery Body (IRB) .............................................................................................. 7 Chapter 3: Oral History and Memorialisation .................................................................................................10 Chapter 4: Inquests and Civil Cases ..................................................................................................................12 Conclusion ...................................................................................................................................................................13 Introduction ....................................................................................................................14 Background and Purpose of this Report ..........................................................................................................15 The Gestation of Current UK Government Legacy Policy .........................................................................16 Compatibility with the NIO’s Equality Duty, Ministerial and Civil Service Code .................................18 Outline of this Report ..............................................................................................................................................19 Chapter 1: An Amnesty for State and Non-State Actors ...................................21 Introduction .................................................................................................................................................................21 Background and Reaction to the Statute of Limitations Proposal .........................................................21 Scope of the Proposed Amnesty........................................................................................................................25 Status of the Amnesty under International Law ............................................................................................26 How These Proposals Compare to Global Amnesty Practice ..................................................................28 The Misrepresentation of the South African Case Study ..........................................................................29 Comparison with the Amnesty Introduced by the Chilean Dictator Pinochet ...................................31 Fact Check: The Vast Majority of Security Force Killings Were Lawful ................................................32 Chapter 2: An Information Recovery Body (IRB) ..................................................35 Introduction .................................................................................................................................................................35 Functions of the HIU and ICIR: Information Recovery as Key Product for Most Families ..............35 The ‘Package of Measures’: UK Government’s Response to its International Human Rights Obligations ..................................................................................................................................................................37 Powers of the Proposed Information Recovery Body (IRB) .......................................................................39 New Criminal Offences for Unauthorised Disclosures ...............................................................................40 Expectations of Disclosure from Paramilitaries ............................................................................................41 Removal of Protections for Information Providers .......................................................................................42 Addressing the Legacy of Northern Ireland’s Past 3 Likelihood of Voluntary Cooperation .................................................................................................................43 Compatibility of Proposed IRB Model with European Convention on Human Rights .....................44 IRB Caseload and Prioritisation ...........................................................................................................................46 IRB ‘End Products’ .....................................................................................................................................................48 Fact Check: Does the Command Paper Provide for Ending all Troubles Prosecutions? ...............49 Fact Check: Are Current and Proposed Legacy Mechanisms Focused on ‘Criminal Justice Outcomes’ and not ‘Information Recovery’ ....................................................................................................50 Fact Check: IRB Powers to ‘Access Information and Find Out What Happened’ .............................52 Chapter 3: Oral History and Memorialisation .......................................................53 Introduction .................................................................................................................................................................53 The Background to the Oral History and Memorialisation Proposals ...................................................53 Critique of the Command Paper Proposals on Oral History and Memorialisation ...........................55 The German Case Study ........................................................................................................................................56 Erroneous Assumptions Underpinning the Oral History and Memorialisation Proposals ............57 Towards a New Model of Governance ...............................................................................................................59 Chapter 4: Inquests and Civil Cases .......................................................................60 Introduction .................................................................................................................................................................60 Inquests and Article 2 of the European Convention on Human Rights ................................................61 Case Study: The Ballymurphy Inquest as an Illustration of the Power of the Coroner’s Court to Establish the Truth ....................................................................................................................................................63 Civil Cases ...................................................................................................................................................................64 Case Study: The Utility of Civil Actions as a Route to Information Recovery: The Ormeau Road Sean Graham Bookmakers Atrocity ...................................................................................................................64 Judicial Review...........................................................................................................................................................65 Conclusion ......................................................................................................................68 This report was prepared by the ‘Model Bill Team’ based at Queen’s University Belfast and the Committee on the Administration of Justice, Belfast. The team consists of Dr Anna Bryson, Professor Louise Mallinder and Professor Kieran McEvoy (all Queen’s University Belfast, School of Law) and Brian Gormally, Daniel Holder and Gemma McKeown (all Committee on the Administration of Justice). For further detail on our work see https://www.dealingwiththepastni.com/ September 2021 The Model Bill Team’s Response to the NIO Proposals 4 Executive Summary Executive Summary Over the course of more than twenty years, successive UK governments have failed to put in place a comprehensive set of mechanisms to deal with the legacy of the conflict in Northern Ireland. The Stormont House Agreement (SHA) 2014, completed after lengthy negotiations with the Irish government and the five main local political parties, offered a route to finally deliver on the promises made to victims and to comply with binding international legal obligations. Despite repeated commitments to introduce the enabling legislation (most recently in January 2020), the current UK government now appears to have unilaterally abandoned the SHA. In July 2021, the government published Command Paper 498 on Addressing the Legacy of Northern Ireland’s Past. This paper proposes a sweeping and unconditional amnesty which would end all legacy-related ‘judicial activity’ (i.e., current and future legacy prosecutions, inquests and civil actions) as well as all police and Office of the Police Ombudsman investigations. The paper also suggests the establishment of a new Information Recovery Body. The latter, based on the information provided, would not have sufficient investigative powers to conduct effective investigations into conflict-era deaths as legally required by Article 2 of the European Convention on Human Rights. In addition,
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