Professor Kieran McEvoy:

Dr. Bryson and I have been working with colleagues at Queen's University and the University of Ulster and the main human rights non-governmental organisation, the Committee on the Administration of Justice, for approximately six years on legacy related issues. Our role has been to try to inform the discussion on what are complex, controversial and sensitive issues by providing technical, legal information to allow people to make up their own minds from as informed a position as possible. In doing so we have worked very closely with the Northern Ireland Office, the Department of Foreign Affairs and Trade, a broad cross-section of victims' organisations, ex-combatant groups, former police officers and across civil society, as well as the political parties, to provide solution-based papers and documents to try to help all of the political actors and civil society.

In 2014 the Stormont House Agreement proposed four mechanisms to deal with the legacy of the conflict in the North. We have been waiting for a public consultation process on the legislation to enact its contents. In 2015 my colleagues and I worked very closely with a parliamentary draftsperson and produced our own best guess of what that legislation might look like in order to help to inform the public debate. It was launched in the House of Lords in 2015 and called the Model Bill. We worked very closely with the Northern Ireland Office and others and encouraged the creation of what we think of as a little nerd community which grasps the detail and complexity of all that is involved and has had lots of nerdy conversations with the various actors between the two Governments. The Secretary of State has told us the consultation process will go public after Easter, but we were told many times before that it was coming.

We will list a few headline points for which to look out. The committee has seen a detailed paper prepared by me and Dr. Bryson on benchmarks to be used in assessing the legitimacy of what is contained in the proposed legislation. The first is in respect of the Historical Investigations Unit, HIU, the proposed investigative element of the Stormont House Agreement mechanisms, merging the work previously done by the Historical Enquiries Team and the legacy unit of the Police Ombudsman's Office. Points for which to watch are its level of independence, its capacity to receive information and issues about onward disclosure which I will discuss in the context of national security. There has been some discussion in the ether, arising, in particular, from an intervention by the leader of the Ulster Unionist Party, UUP, in a debate that we thought had been resolved, of whether the body should include former RUC personnel in its investigators. We thought the matter had been resolved because there have been several High Court judgments in recent years - two in 2017 - which, in effect, stated the presence of former RUC officers on the Historical Enquiries Team made the work being done on the cases being addressed unlawful in human rights terms. It did not comply with the investigative elements of Article 2 of the European Convention on Human Rights. The leader of the UUP has argued that the inclusion of former RUC officers as investigators in the unit is a political benchmark. That makes us quite nervous because there have been several judicial interventions which make it clear that it is probably unlawful. Why would someone seek to legislate for anything that they know is unlawful in the first place? It looks to us like politicking.

Members will also be aware of the key litmus test in the public debate about the legislation leaked in 2015, prepared by the British Government, which proposed mechanisms to deal with issues of national security, in particular the capacity of the Government to redact information that would be given to families, particularly from the Historical Investigations Unit, and widespread powers for the Secretary of State to redact information on the grounds of national security which, as the committee knows, has no statutory definition.

Rather than just complain about this, we worked closely with other colleagues, particularly NGOs which work with victims of state violence, the constituency potentially most affected by the national security provisions, Relatives for Justice and the Pat Finucane Centre. We came up with a model wherein a judge would make the final determination on what was or was not a national security consideration. It is quite technical, but it is important because it was proposed in the legislation leaked in 2015 that if there was an appeals mechanism built into the process in respect of what was or was not a legitimate national security concern, it would be of the standard of a judicial review which, in effect, would say a decision was so unreasonable that no reasonable Secretary of State could have made that determination. In our view, that is a very high bar; therefore, we proposed a different bar whereby a judge would be involved in making determinations in examining the granular detail of intelligence and other information and making judgments on what were or were not legitimate national security concerns.

I can go into it in some more detail, but that is another benchmark issue for which to look out in terms of the credibility of the proposals made.

The other issue, of which members will be aware and that has been in the ether, is that of a proposed amnesty for state actors. That was not included in the Stormont House Agreement, but the proposal came from the UK defence select committee last year. I gave evidence to the select committee. I have done lots of work internationally on amnesties and their lawfulness and otherwise. The outworking of that proposal is that in 2018 the Northern Ireland Office indicated that it was minded to include the issue, even though it was not included in the Stormont House Agreement, in the consultation process. I am given to understand that it featured heavily in the most recent round of failed negotiations. Again, it is an issue for which to look out. From my perspective, what it would mean, first, is that we were stepping outside the terms of the Stormont House Agreement. None of the five local parties argued for its inclusion during the negotiations, nor did the two Governments. Therefore, No. 1, it is coming from a particular constituency in the Tory Party and elements of the Democratic Unionist Party. Second, having done the nerdy stuff as a lawyer and looked in some detail at the practical consequences of introducing an amnesty for state actors, it could not be done in a context in which one was trying to exclude truth recovery, namely, the Article 2 investigative truth recovery components of dealing with the past. If one were to try to have such an amnesty, it would be unlawful, in effect, and against international law. One could not have an amnesty of that nature which would apply only to state actors. The legal consequences of such an amnesty, in effect, would be that prosecutions would become impossible for non-state actors. The chairman of the UK defence select committee, Dr. Julian Lewis, more or less seemed to acknowledge in an article in the Belfast Newsletterthat he realised it was quite a big ask and would be a high price for victims in North Ireland to pay to accept it, but if it was the price that had to be paid to give protection to state actors who had served in Northern Ireland, they might have to pay it. From my perspective, that is a huge price for victims to pay because across the community there is a significant demand for justice and prosecutions, although everybody recognises that under the Good Friday Agreement no one serves more than two years for conflict related offences. Again, this will be a huge issue and everyone will have their eyes on it.

I will hand over to Dr. Bryson to speak about oral history.