Mr. Brian Gormally:

I thank the Chairman and the committee for the invitation to give evidence here today. It is much appreciated as is the work of this committee. I have provided an opening statement to the committee but I will not read it all out to save time. I will pick out some crucial points from our point of view. For those who do not know, the Committee on the Administration of Justice was established in 1981 and is an independent non-governmental organisation working for human rights and we are affiliated to the International Federation of Human Rights. We take no position on the constitutional status of Northern Ireland and we are firmly opposed to the use of violence for political ends. Our membership is drawn from across the community.

Today we are talking about dealing with the past. To date, there has been no overarching legacy commission or transitional justice mechanism to deal with the legacy of the conflict in this country. Instead a number of criminal justice system mechanisms have examined unresolved conflict-related deaths. Mr. O'Connor alluded to the fact that serious limitations become apparent in most of these mechanisms, which means that they have been unable to provide accountability for human rights violation and unable to meet the obligation of the UK Government to properly investigate deaths. Elements of the package have been shown not to have the necessary independence, effectiveness or impartiality to investigate state actors, in particular. Even those mechanisms which have been independent, such as the ombudsman and inquest, have faced limitations on their powers, delay or obstruction in undertaking their work.

After the failure to agree on the Haass-O'Sullivan proposals and the earlier Eames-Bradley proposals, which were immediately rubbished by the government, we now come to the Stormont House Agreement. The first thing to be said about that is that it is an agreement. Irrespective of the other bits of the agreement, the dealing with the past elements, even though they are in very broad brush terms, were agreed by the two Governments and the five major political parties. In that context, we believe that the Stormont House Agreement proposals provide the best chance to deal with the past since the Good Friday Agreement.

In our view, the proposed institutions have the potential to provide effective redress, yet the efficacy of these mechanisms will lie in the detail of how they operate. It is this that will determine whether the bunch of proposals of mechanisms will succeed in conducting human rights compliant investigations and in achieving accountability and a measure of truth and justice for victims.

This is why CAJ has co-operated with academics from Queen's University and Ulster University and individual experts to produce a model Bill and explanatory notes that would implement the Stormont House Agreement a human rights compliant manner. As human rights activists, we felt, and feel, the responsibility to put forward constructive solutions and not just sit on the sidelines criticising. These documents were launched last week in Belfast after a process of continuing consultation with civil society, the UK Government officials drafting the legislation and officials from the Department of Foreign Affairs. The model Bill also contains a suggested draft of the Irish-British treaty which will be necessary to establish the independent commission on information retrieval. I have sent copies of these electronically to the committee and there is also a briefing document that we have produced on the key issues that we think need to be considered in the legislative implementation of the Stormont House Agreement.

I will just pick out some of the main points here. Yesterday, we received a synopsis from the Northern Ireland Office of what the legislation will contain. It is only a few pages long and is by no means draft legislation but, unfortunately, it in some ways bears out some of our worries about the implementation.

The historical investigations unit is the key institution proposed by the Stormont House Agreement. It should provide a robust investigative mechanism that could result in criminal prosecutions and should mostly meet the UK Government's obligation under Article 2 of the European Convention on Human Rights to properly investigate deaths that occurred during the conflict.

However, there are a number of vital issues - red line issues - which must be dealt with if the institution is to be effective and in line with human rights law and standards. It must have full, unfettered and unfiltered access to all relevant archives and records, whichever agency holds them. The UK Government has committed to full disclosure to the historical investigations unit but we are concerned that elements of the discredited legacy support unit of the PSNI may still be involved with the intelligence archive in some way or, worse, transferred lock, stock and barrel into the HIU. I say the discredited legacy and support unit because the problems with disclosure are holding up the inquest system, for example. The fact the unit is headed by an ex-RUC special branch officer, a post specifically created for him, destroys the potential independence of that unit.

The HIU investigators would also need to have full access to materials held by other police forces, the security service and the Ministry of Defence, wherever they are located. In the document published yesterday by the Northern Ireland Office, we are pleased to see that there will be an obligation on UK state agencies to provide any documents requested. Rather than just relying on the police powers of the HIU, there is a positive obligation.

Where there is no prosecution in a case, the HIU will provide information to families. Clearly that information will have to be redacted to avoid any concrete threat to the life of any person. However, we are concerned that the UK Government would seek a veto on the grounds of the undefined concept of national security, which would be an unacceptable restriction on the right to truth. The publication yesterday by the NIO of the synopsis of the proposed legislation confirms this. We had written to the Secretary of State about this and yesterday I received a letter from the Secretary of State’s office confirming that they will impose such a national security veto, and this of concern to us.

In order to be Article 2 compliant, the HIU must be independent. This is the absolutely crucial aspect. That means there must not be any connection between those investigating and those who might be investigated. In our view this means no former RUC, British army or paramilitary personnel should be involved with the organisation in any way. The NIO synopsis explicitly rejects this proposal for inclusion in the legislation, but it does say that the HIU must take account of the practice of other agencies in ensuring independence. In that case, we feel it should follow the policy of the Police Ombudsman which excludes former security force members from relevant investigations.

The governance of the HIU must be independent. The Stormont House Agreement says the HIU should report to the Northern Ireland Policing Board, which is, in our view, a relatively independent body but we remain concerned that there may be scope for government control through the manipulation of budgets and departmental interference. The synopsis by the NIO also makes clear that the HIU will not be accountable to the policing board when it comes to national security matters but will be accountable to the Secretary of State. While that is also the arrangement for the PSNI, it is a diminution of democratic accountability none the less.

I will not make any comments on the other institutions except to echo what Mr. Paul O’Connor has said about mischievous reporting of the independent commission on information retrieval in that it would offer amnesties. That is completely untrue. It is simply qualified privileged for the statements made. It is not immunity for the individual who might make incriminating statements.

The oral history archive is important but is of less immediate significance in human rights terms. However, it may be very important as a mechanism to allow people to tell their stories about the conflict. The Implementation and Reconciliation Group, which has a kind of supervisory function and proposes themes for independent academics to draw into narratives of the conflict, will not be included in the legislation that is going through Westminster. We believe this means it will not be taken seriously. However, it should be included in the legislation. The possibility of getting legislation about that through Stormont is probably remote. Mr. O’Connor referred to our concerns for the inquest system. We are highly critical of the Northern Ireland Minister for Justice for his refusal of a request from the policing board for Her Majesty’s Inspectorate of Constabulary to look at the disclosure mechanisms of the PSNI. We feel this was a disgraceful decision.

On the matter of the way forward, it is now clear that the UK legislation will be laid before Parliament in October. It will require a legislative consent motion to be passed at Stormont. We are convinced that this process offers a major opportunity to deal effectively with the legacy of the past. However, the establishment of a mechanism that fails the human rights test will also fail the test of confidence of the victims and broader society. That would be worse than useless. We are committed to campaigning for a human rights compliant process, and if it is human rights compliant, to campaign for a positive legislative consent motion in the Northern Ireland Assembly. We are prepared to campaign against one which does not meet human rights standards.