Oireachtas Joint and Select Committees
Thursday, 7 July 2022
Joint Oireachtas Committee on the Implementation of the Good Friday Agreement
British Government Legacy Proposals: Discussion
I warmly welcome the representatives of the model Bill team, Professor Kieran McEvoy of Queen's University Belfast and Mr. Daniel Holder of the Committee on the Administration of Justice, to discuss the response of the model Bill team to the UK Government's Northern Ireland Troubles (Legacy and Reconciliation) Bill.
Before we begin, I will explain the usual limitations on parliamentary privilege and the practices of the committee. The evidence of witnesses present or who give evidence from within the parliamentary precincts is protected pursuant to both the Constitution and statute by absolute privilege. However, witnesses and participants who are to give evidence from a location outside the parliamentary precincts are asked to note that they may not benefit from the same level of immunity from legal proceedings as a witness giving evidence from within the parliamentary precincts. Witnesses are also asked to note that only evidence connected with the subject matter of proceedings should be given. They should respect directions given by the Chair and the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. Members may only contribute from within the confines of Leinster House, even if they are joining the meeting on Microsoft Teams.
I invite Professor McEvoy to make his opening statement. There is a vote ongoing in the Seanad and several members of the committee are absent but will return shortly.
Professor Kieran McEvoy:
Mr. Holder and I will both contribute opening remarks. I am a professor of law and transitional justice, working at the law school at Queen's University and at the Mitchell Institute. Mr. Holder is a member of the Committee on the Administration of Justice. The model Bill team is a team of academics, including me and my colleagues, Professor Louise Mallinder and Dr. Anna Bryson, working with colleagues from the Committee on the Administration of Justice, which is the main human rights NGO in the North. The work in which we have been involved through the past decade has been trying to find lawful and human rights-compliant ways to help deal with the legacy of the conflict in Northern Ireland. In that period, we have produced 20-odd reports. As we see it, our job as the nerds in this field is to produce accessible information that allows stakeholders to make up their minds on these difficult and controversial issues from as informed a position as possible. The way in which we have done that is to benchmark all our work against the European Convention on Human Rights, international law and domestic law in particular, as well as the Good Friday Agreement and the Stormont House Agreement. Everything we have done has been framed within that context.
We welcome the opportunity to again appear before the committee to give evidence. I and my colleague Dr. Bryson gave evidence to the committee in 2018. Mr. Holder was before the committee a few months ago. We have also given evidence to a range of committees at Westminster and to the US Congress. We have worked extensively with the United Nations, the Council of Europe and other international stakeholders.
Following the UK’s unilateral departure from the Stormont House Agreement which, it appears, includes the abandoning of the bilateral treaty signed by the British Government and the Government in the Republic, we have critiqued the proposals that have since emerged, from the UK command paper in 2021 onwards. As members are aware, that command paper proposed a general and unconditional amnesty. My colleague, Louise Mallinder, is probably the world expert on amnesties. She compiled a database of more than 500 amnesties from around the world and we were able to place the amnesty proposed in the command paper within that context. Our conclusion was that it was one of the most egregious in our database in terms of its scale and ambition and was significantly worse than that introduced by General Augusto Pinochet, the former dictator in Chile. In addition to concerns in respect of the scale and ambition of the amnesty, we also raised our concerns about the gutting, as we termed it, of meaningful investigations into the conflict. In particular, our argument, on which we will expand, is that the piecemeal approach to dealing with the legacy of the conflict in the North has been providing, albeit in a rather slow and rumbling way, a version of truth recovery with teeth, using the legal powers of various legal and investigative mechanisms to ultimately deliver for families. We saw the command paper as, in effect, undermining that.
The command paper and the Northern Ireland Troubles (Legacy and Reconciliation) Bill that is currently before Westminster were rationalised by reference to a deeply misleading and inaccurate series of information - in essence, fake news - relating to purported biased efforts to hold to account state actors in terms of investigations and prosecutions, thus calling into question the credibility of investigative mechanisms, the work of the PSNI, the Judiciary, lawyers and a range of other actors. That same fake news has been used to rationalise and justify the Bill that is currently before Westminster. The command paper was critiqued by the Council of Europe and the UN special rapporteur on transitional justice as a flagrant breach of the UK’s international obligations. The Council of Europe Commissioner for Human Rights recently expressed serious concerns in respect of the new Bill. She released a statement to that effect last week. We expect to hear interest from the United Nations in respect of the new proposals that have come forward. It is our view that although these proposals are dressed up in the language of reconciliation, that is not a credible claim, not least because the claims relating to reconciliation that have been associated with the Bill in its passage through Parliament and in terms of how the UK Government has responded to concerns from the Irish Government and other stakeholders does not tally with what the Secretary of State and other political leaders have said in other formats. For example, the Secretary of State commented on the real rationale for the Bill which, it appears, is to ensure that state actors are not held to account, that there is a drive towards impunity for state actors. In our view, the reconciliation aspects of the Bill are window dressing to cover up for that.
Mr. Daniel Holder:
We have been the first to point out how some of the existing mechanisms for dealing with the past in Northern Ireland, such as the inquest system, the Police Ombudsman for Northern Ireland and police investigations, etc., have been weakened through the years, largely through limitations imposed by UK state agencies. It is notable, however, that these mechanisms, having overcome many of these significant barriers, are currently delivering information recovery with teeth, and historical clarification in particular, as never before. It is at this juncture that the UK is moving swiftly to close down these existing mechanisms, thwart their work and replace mechanisms relating to independent judicial and investigative processes with mechanisms that are under direct UK Government control. There has been no due process in the production of the Northern Ireland Troubles (Legacy and Reconciliation) Bill, the contents of which were not even disclosed to the Northern Ireland Human Rights Commission, which is a core Good Friday Agreement institution precisely with a mandate of advising whether the contents of a Bill are human rights compatible. It saw the Bill at the same time that it was published in the UK Parliament.
Our conclusion has been that the Bill is unworkable and in breach of the Good Friday Agreement and binding international law and will not deliver for victims and survivors, many of whom have waited decades for truth and justice. The breaches of the Good Friday Agreement relate to the way the agreement guaranteed the specific incorporation of the European Convention on Human Rights, ECHR, as well as issues relating to the devolution settlement. There are specific issues under Articles 2 and 3 of the ECHR that require independent and effective investigations into certain deaths, including those with potential state culpability. There are similar obligations with regard to torture and serious injury.
In addition to shutting down all existing investigative mechanisms, the Bill will, for a very limited period only, permit reviews into certain cases. These are reviews, not investigations, that, in our view, will not meet the standards for independent or effective investigations, which renders the Bill domestically unlawful as well as in conflict with the ECHR. We consider that the immunity provisions, which are broad and based on a subjective test where the person seeking immunity only has to think they are telling the truth to get immunity, are also unlikely to be compatible with the ECHR.
The extensive proposals in the Bill on oral history memorialisation and academic research on the conflict would appear to be designed to provide legal and political cover for what many rightly regard as an indirect route to impunity. We consider the Bill to be irredeemable and unfixable. Notwithstanding what else is happening today, it appears, nevertheless, that the Bill will proceed through the UK Parliament. It has already gone through the House of Comments. We recognise that the Irish Government has already raised clear concerns about the UK Bill. If and when the Bill becomes law, a clear option for the State, not least as co-guarantor of the Good Friday Agreement, would be to challenge the UK over the Bill through an interstate case to the ECHR.
The onus to do this has to be said in the context of the UK not being the only state in Europe showing contempt for the international rule of law at present. There is a very complex situation within the European context and the consequences of the Bill would reverberate well beyond the island. There is a real risk that authoritarian regimes around the planet will be licking their lips at the precedent this type of Bill will set. My colleagues have already raised in media pieces in The Irish Timesand Business Postthe prospect of the Government taking an interstate case against the UK if the Bill proceeds. It would be very welcome if the committee would consider raising this matter with the Government.
A number of us recently visited Washington in the United States. We met with the Ancient Order of Hibernians, AOH, and it made a recommendation to us at that time that we make such a recommendation to the Government if and when the legislation was passed.
Some Senators were absent due to a vote. We agreed that the order would be Fine Gael, Sinn Féin, Fianna Fáil, the SDLP, Alliance, the Green Party, Sinn Féin, the Labour Party, Independents, Aontú and so on, about 15 minutes per group.
I have a question which probably has an obvious answer. If the legislation goes through the UK, and assuming the Irish Government makes the referral mentioned, the legislation still proceeds. What other powers would other courts have regarding the decision of the UK Parliament?
Mr. Daniel Holder:
It goes straight to the House of Lords. The First Reading has already taken place in the House of Lords and the date for the Second Reading, or general debate, is yet to be set. I understand there are still a couple of weeks before the recess, so it remains to be seen whether it will happen before then.
Mr. Daniel Holder:
It will certainly get a rougher ride in the House of Lords. In the House of Commons, all of the opposition parties were opposed to it, but very few Conservatives were. I understand the former Secretary of State for Northern Ireland, Julian Smith, and possibly a few others abstained on the Bill. Beyond that, there will be a much greater interrogation of the Bill in the House of Lords.
In our view the Bill is irredeemable. It is not a question of it needing a few tweaks and changes; it is simply a question of withdrawing or rewriting the entire thing.
The issue which is continuously raised is whether the House of Lords can block the Bill. As with everything in the UK system, it is down to convention rather than strict rules. The Salisbury convention means that the House of Lords cannot normally block a Bill that was in the manifesto of an elected Government. However, sometimes what was in the Conservative manifesto is overstated. It does not refer to an amnesty in these terms or ending all investigations. It actually refers to outcomes for victims and survivors, as well as veterans. It remains to be seen how much resistance there is in the House of Lords.
I worked in the House of Lords ten years ago as an intern. As we saw with the Brexit legislation in 2019, it will not be able to stop it. All it can do is delay, obstruct or slow it down it until it eventually gets through in some shape or form, if there are enough Conservative peers, which there are, to pass it.
What is the real driving force behind the legislation? Mr. Holder referred to that earlier, and might want to expand on his remarks. My final question relates to comments of the Chair. Is Rwanda the only other example where legislation has been referred to the court he mentioned or are there other examples of legislation in a European context that has been referred?
Professor Kieran McEvoy:
For us the driver is very clear, and the driver for this is to achieve impunity for state actors. The Secretary of State has said as much on the Conservative website home page. I suspect he did so without taking advice from the Northern Ireland Office, NIO, lawyers because if they had been beside him I do not think he would have written what he did. I suggest the committee have a look at the website. The UK Government is being quite frank; it is something it planned to do.
The fact that this has been railroaded through the House of Commons in the face of complete opposition from all of Northern Ireland's political parties tells us that this is not about achieving reconciliation in Northern Ireland. If one was serious about achieving reconciliation in Northern Ireland, one would have worked much harder to bring Northern Ireland's political parties and civil society together. All of the major victim groups in Northern Ireland are opposed to the Bill. The UK has also abandoned its partnership approach with the Irish Government. If people were serious about achieving reconciliation in Northern Ireland, they would have worked on bringing all of those constituencies with them.
Our strong view is that the evidence all points to the fact that it is not about what is happening in Northern Ireland; it is about what is happening in Britain and on the right of the Tory Party. There has been a vocal campaign from elements, but not all of, the veterans community, which has lobbied for some form of amnesty. As the committee knows, a version of an assumptive amnesty was put through in the Overseas Operations (Service Personnel and Veterans) Act 2021 for British army veterans who served in Iraq, Afghanistan and other international operations. The assumption was that after five years had passed, veterans would get an amnesty. At the time, the UK Government promised it would do something similar for British army veterans who served in Northern Ireland. What the driver is, to achieve impunity for state actors, is not a secret.
I agree with everything the witnesses have said. I thank Mr. Holder for coming before the committee again under different headings. My questions are similar to those of Senator McGahon.
We have seen the Third Reading of the Bill. It has been said that we could challenge the UK through the ECHR. I want to acknowledge what the witnesses have said, namely, that it is through no fault of the Irish Government or want of trying. What can we do?
I have a set of questions I have put aside today, given everything that has happening in the UK. Does that change anything? Are we too late in the process? What can we do not just politically, but also from a movement point of view, to support victims through this? Where can we go from here to stop this? I agree with the witnesses that it is an irredeemable, unworkable and offensive Bill on every level. I want to stop it, but I am not sure what the options are.
Mr. Daniel Holder:
A number of things can be done. The Government should continue to articulate very clearly its opposition to the Bill, and also articulate very clearly that it is not, in the view of the Government, ECHR compliant. There are diplomatic ways and international institutions in which that can be articulated. The key institution is the Council of Europe human rights system, in particular the ECHR and the potential for, ultimately, an interstate case to bring this before the court relatively quickly.
It is also quite important for the Irish Government to counter the false narrative that surrounds the Bill. UK Ministers have said different things to different audiences.
This goes back to the last question. When we read some of the stuff that is written and the UK submission to the Council of Europe, it is as if UK Ministers all of a sudden have had a Eureka or road-to-Damascus moment where they have come across the concept of information recovery and reconciliation, and that is the driving force behind the legislation. We all know that that simply is not true. We do not actually have to dig very deep to find that that simply is not true. In other forums, UK Ministers themselves are saying that the driving force behind this is to end investigations into members of the military. They are saying that it will end the questioning of members of the military and that no longer will they fear a knock on the door. They are using that type of language. While saying that the new information recovery body will have powers, there is also the clear implication that it is not going to use them. The guarantees by the office holder who is to appoint the people who run the commission, that it will not actually use the type of powers that would involve bringing people in for questioning, are problematic.
There is a second issue driving this legislation that is also quite clear from the things the Secretary of State for Northern Ireland and other Ministers have said in different forums, namely, the issue of taking back control of the narrative of the conflict and of projecting an official truth. Essentially, what is being said is that independent judges, investigators and inquiries, in doing their jobs, are "rewriting history", in the words of the Secretary of State for Northern Ireland. The idea is that these types of independent investigations are rewriting history, presumably with independently verifiable facts. Therefore, the express purpose of the oral history and memorialisation provisions that are within this Bill, according to the Secretary of State himself in his Conservative home blog, are to take back control of that rewriting of history and project an official narrative. Sometimes these arguments get traction in places they should not. I think it would be very helpful if that narrative is countered at a higher level and continues to be so.
Mr. Daniel Holder:
I think it should be referred within four months. There is a reasonably strict time limit on it being referred. There is a question of how domestic remedies are exhausted that is quite complex, as there may be no remedy for the Government itself. Others may take cases. An obvious body that could take cases and could intervene in its own name is the Northern Ireland Human Rights Commission. However, that organisation has been steadily underfunded by the UK for years to the extent that it is pretty much at the point of not being able to discharge a lot of its core functions. It would need to be done pretty quickly.
Professor Kieran McEvoy:
On the utility of the interstate process, the process within the European system is designed to uphold the rule of law within the Council of Europe. Essentially, referrals are speeded up in terms of how they are considered. However, I think Mr. Holder's earlier point is a strong one. This is not simply about what is going on in Northern Ireland. If a Government as senior as the UK Government is seen to introduce this kind of an amnesty, it will embolden authoritarian regimes around the world. For people who take seriously upholding the rule of law within the Council of Europe, and I would imagine most of the member states do, I think the alarm bells will ring. If the Irish Government determined that this is the way to go, I think there will be a receptiveness to how serious and important this issue is. I want to put on the record that in no way am I criticising the Department of Foreign Affairs. I think the officials there have had the patience of saints in their engagement with the Northern Ireland Office over the last number of years around legacy issues. They really stretched themselves as far as they could as diplomats but sometimes diplomacy alone does not work in these kind of relationships. One would expect that if there was a different shade of Government or even a different style of Tory leadership with an openness, progress could be made. The peace process only works when there is joint stewardship between the British and Irish Government. This British Government has not done that. Being open to returning to a normal grown-up diplomatic relationship between the two states, as well as bearing some teeth via an interstate challenge, would seem to me to be a sensible way to progress.
The witnesses mentioned, in their opening remarks, that victims groups from all sides are also deeply concerned about the legislation. I live in County Louth. There are two particularly appalling murders that I can remember, those of Tom Oliver and Jean McConville. No matter who murdered those people, they were appalling, evil acts. There are people outside of state forces who carried out murders.
First, I thank our witnesses for the analysis they did. I know that the Chairman and others who visited Washington DC will agree that it provided us with really valuable material to be able to communicate to those there what exactly what is going on. As has been mentioned, the important point is that the British Government and its envoys in the United States are trying to convince people that it is trying to defend the Good Friday Agreement and deliver better outcomes for victims and survivors, which obviously is a lie. We might as well call it that. Nobody is being fooled. What was good about the trip to Washington DC was that it was on a cross-party basis and was the first time that this Oireachtas joint committee had visited Washington DC. We were able to address some of the lies that had been told about this legislation and what it might do. At the end of the day, it is an insult to the intelligence of all of the political parties, the Irish Government, and indeed, European states in terms of what is trying to be achieved here. I think an important point was made when the witnesses stated that it was not proposed by all veterans. It has been proposed by an element within the military to keep things closed and to keep the lid on things. God forbid that the people across this island or other islands around the world would see exactly what happened. We can see very clearly the attempts to control the narrative there. It is just appalling, never mind the unilateral actions of the UK Government.
I have a few questions on the legislation. Is it unprecedented in the last quarter of a century since the Good Friday Agreement, in terms of what it seeks to do and in there being no due process, as is set out in the Bill? I ask the witnesses to elaborate on their point that the processes are actually working too well in terms of information that is coming out. Indeed, some of us attended the Ballymurphy inquiry in Belfast. Have the witnesses come across anybody, in all of their work and engagement, who thinks that this legislation is a good idea or the right thing do to? I ask them to outline the timeline around taking an interstate case to the European Court of Human Rights.
Professor Kieran McEvoy:
On the Deputy's first question as to whether this is unprecedented, the simple answer is "Yes". The various items of paperwork that come along with the Bill, including the human rights memorandum, make reference to a number of things that happened during the peace process. The early release of politically-motivated prisoners is referenced, as is the process for the disappeared and the recovery of bodies, and the process of decommissioning of weapons. However, none of those processes are that relevant to what is being attempted here. First, in terms of the early release of prisoners, as committee members will be aware, people had already been tried and convicted and had served a sentence. It is true that prisoners were all released within two years of the Good Friday Agreement being signed, but in this context, we are talking about getting rid of investigations, prosecutions and no jail time being served.
In previous efforts we worked very hard to come up with pragmatic solutions. Consequently, working with the British army and a range of other stakeholders, we came up with what we thought was a workable solution whereby, for example, one could have continued to have investigations and prosecutions but would have reduced jail time to zero. I am sure there is a genuine concern, at some level, about elderly veterans going to jail in their 70s or 80s and what is the purpose of that and so forth but in doing that piece of work, we discovered that the Secretary for State for Northern Ireland already has the power within the Northern Ireland (Sentences) Act to reduce the two-year maximum to zero. That can be done now so it is not about keeping elderly veterans out of jail. It is about not having public trials and not having proper investigations.
On the disappeared process, obviously evidence could not be used relating to information that was given over from the IRA, primarily, to that commission. If other evidence emerged from somewhere else and not that process then people were still liable to prosecution and, similarly, the decommissioning. One had narrow versions of immunity to achieve particular objectives, which is what happened with the disappeared process but it was not an amnesty and did not get rid of prosecutions so if evidence came from somewhere else, it could be used.
The really frustrating bit for us, having worked on this matter for all the years, I stress that our frustration is nothing compared with the victims who have waited for 50 years for this stuff, but as people who have put in a significant amount of time and energy, there was a workable solution through all of this. There was a bilateral approach with the Irish Government keeping the local parties on board, perhaps even getting to a stage where if one had reduced the jail time to zero to deal with the veterans issue, and there would only have been a small number of prosecutions anyway, but victims would still have had their day in court. When you can come up with lawful and politically pragmatic ways of getting it done then it is very frustrating that such a pathway is not taken because it was there for the asking and could have been done. Yes, it is unprecedented, it is a unilateral act on the part of the British Government, it was not workable and in our view, it is unlawful.
Mr. Daniel Holder:
In terms of how well the current mechanisms work, they came from the cases that were taken to the European Court of Human Rights that things were not meeting the investigative standards, so there were changes to the inquest system, the Police Ombudsman for Northern Ireland, and a call in of independent police teams and things like that to try to progress human rights complaints investigations. As we know there has been huge amounts of obstruction of those bodies over the years. Most recently, it was the blocking of funding for things like legacy inquests and the office of the Police Ombudsman for Northern Ireland. Also, there was what is sometimes called the slow waltz of state disclosure, where documents in control of the Ministry of Defence and other agencies are not disclosed. We have got to a stage where the relentless work by families and their representatives has managed to overcome a lot of those barriers and we are seeing delivery of the existing mechanisms at the moment like never before, so we have many hundreds of pages this year. There are 600 pages in the two biggest reports alone but there is more than that from the office of the Police Ombudsman for Northern Ireland. They have delivered significant truth recovery with teeth because there are proper powers, in reports like Operation Greenwich and Operation Achille, and historical clarification regarding the patterns and practices of police collusion with loyalist paramilitaries in different areas. There is also the inquest system, which is also beginning to deliver. There was the Kathleen Thompson inquest last week and there was the Ballymurphy inquest before that. It has broken down what were decades of an official truth that simply was not true, and provided considerable historical clarification at the very least.
There is Operation Kenova and the other operations under the auspices of former Chief Constable Jon Boutcher, that have amassed, again using information recovery with teeth and full police powers, more than 50,000 pages of evidence now. Definitely the British Government's command paper but no-one else ever pretended that all of these mechanisms were about prosecutions. Everyone knew that prosecutions were going to be few and far between for reasons that do not need to be rehearsed here. Really they were about information recovery with teeth. It is at this very juncture, when they are now finally overcoming those obstacles and beginning to deliver, that the drawbridge is about to be pulled up, which is profoundly concerning.
On the question that asked who supports this, I struggle to pin down the names of groups. I mean that the groups who have supported this tend to be those that represent some military veterans and some police officers, and by former police officers, but by no means all.
Professor Kieran McEvoy:
On the point made about former police officers, the Royal Ulster Constabulary George Cross Foundation, which represents former RUC officers, has come out strongly against it. So there is a diversity of views among the people who have served in the security forces, which is not often represented in the ways in which British Ministers speak.
On one point that Mr. Holder made, having studied and work on this for long time, one of the things that becomes clear is that the fear that drives this Bill is precisely about a judge or a police officer doing his or her job properly using his or her respective powers. It is where people have proper legal powers and do their jobs properly in terms of investigating the past via an inquest, the office of the Police Ombudsman for Northern Ireland or, indeed, the work of Jon Boutcher. Good people with proper powers, proper police powers, proper investigative powers and proper powers of inquest are the problem. That is why I had a meeting with a senior official in the Northern Ireland Office on the evening that the Bill came out. I get on very well with this particular individual but I said to him that it looked to me as though what the office had done here was simply to do a search, find and replace for the word "investigation" with the word "review". There is a 2018 version of the Bill that was produced to implement the Stormont House Agreement. I asked him whether that is what had been done and if the office literally had done a search, find and replace throughout the Bill, and right down the spine of the Bill and every time. In the previous version of the Bill there is a lot of discussion around Article 2 compliant investigations being independent, effective and so on. All instances of the word "investigation" have been replaced with "review". It does exactly what it says on the tin and, frustratingly, there was a workable solution where all of this could have been done.
Mr. Chris Hazzard:
I thank the witnesses for their presentation and concur with much of what has been said previously.
First, it is important that the narrative is developed. We can wrongfully think that this is just the Tory right which is driving this. Elements from across the entire British political system who have bought into this idea and accept the narrative regarding the witch trials and all the rest of it. I think that there is a role for the Dublin Government.
Second, I want to pick up on the point made about authoritarian regimes around the world licking their lips at this. It used to be the case that those same regimes in similar places used to be very envious of various clauses in the Civil Authorities (Special Powers) Act (Northern Ireland) and I have no doubt that they are going to look at this legislation. Where does the United Nations come in, especially with regards to the fact that the Irish Government has a seat on the Security Council? Is there a role for the Office of the High Commissioner for Human Rights? Is there opportunity for periodic reviews to look at some of this stuff? Does that help put it into an arena that again helps? It is right to say that the Council of Ministers and the State case in Europe is going to be the obvious place. What role does the United Nations play in this regard?
Professor Kieran McEvoy:
All of the above. As Mr. Hazzard knows, the UN special rapporteur on transitional justice carried out a visit to Northern Ireland in 2014 and 2015 and was quite critical at that stage about what was going on. His successor issued a very strong critique of the command paper. Obviously we have sent our materials to him again and said this is the new version of the legislation and one would expect the UN special rapporteur on transitional justice to come back as well. He has serious misgivings on the use of amnesties per seso I expect the UN to issue something critical fairly soon on it as well.
Mr. Chris Hazzard:
The UK is up for its universal periodic review in September or October of this year where member states could certainly press these issues. I hope that this will be an issue on the agenda but not least because of the concerns that the special rapporteur has already raised that this is a flagrant breach of the UK's international obligations.
I thank the witnesses. I congratulate Professor McEvoy on the hard work that has been done on this Bill. There is a huge irony whereby this legacy Bill compounds a legacy of mistrust, lies, collusion and covering up. The irony is not lost on anyone in this room in terms of trying to deal with something by hiding and continuing to hide.
I will take up a point made by the previous speaker.
I was at the Security Council recently and I raised this with our ambassador. I asked about the lessons we should have learned, or can learn now, from the Good Friday Agreement, on how we did not deal with legacy and why it was not dealt with. It is a huge failure of the Good Friday Agreement that we do not have that mechanism and a way to move on. As we all well know, we cannot move on with legacy and fear weighing constantly on our shoulders. There was no answer from the ambassador on that day about why we ignored it or why we failed to deal with it. What they were speaking about was how to use that at the UN. It is possibly an avenue that we all could explore. We could use our two years on the Security Council to make sure the UN looks at legacy issues. This is an international agreement recognised by the United Nations. It is part of its remit and we should use our place on the Security Council to address that. Fianna Fáil and indeed all of us have been against this legacy Bill. We want the truth and we need the truth. The witnesses have our support and the victims have our support, unquestionably and without any compromise.
Mr. Daniel Holder:
The Senator is right. There is no transitional justice mechanism within the Good Friday Agreement. What it did do, which was very important, was incorporate the European Convention on Human Rights into Northern Ireland law. That has been transformational but even that is now under threat, in complete contravention of the agreement. It is notable that even the British Government's own paper to the UK Parliament on the human rights compliance of the Bill stated that the mechanism it proposes to set up in its view, which we do not agree with, complies with most of the obligations under Article 2 of the ECHR. You have to comply with all of the law, not most of it. Even the UK Government's own paper appears to concede that this is unlawful. It is a very worrying development.
I thank Professor McEvoy and Mr. Holder for their excellent presentation to this committee and the absolute clarity in their presentation on a complicated issue. From listening to them, and based on previous discussions, it is obvious that this legislation proposed by the British Government is a charter to excuse murderers, whether by state forces or paramilitary organisations. In any democratic society it is a sad day when we are talking about introducing that type of legislation. I gather from the witnesses' comments that a person could literally grant himself or herself an amnesty if he or she says something is true to the best of his or her knowledge and belief. That is shambolic altogether, to put it very mildly. It is reprehensible and absolutely unacceptable. We have had discussions in the Dáil and Seanad, which many of us participated in, since this Bill was first introduced by the British Government. I and others have compared this legislation to what tinpot regimes in South America would have introduced. That was a political charge on my part but the witnesses put a legal hat on that when they said it was even less that what General Pinochet granted people. The witnesses outlined that clearly. We can make the political charge, which we stand over. It is a fairly frightening message that this is the type of legislation proposed by the British Government and which has unfortunately passed through a House in the British Parliament. It is reprehensible.
The witnesses' written submission is powerful as it is so comprehensive and succinct. It sends out a stark message:
We have concluded that the bill is unworkable, is in breach of the Good Friday Agreement, interferes with the devolved administration of justice in Northern Ireland, contravenes binding international law and that it will not deliver for victims and survivors, many of whom have waited for decades for truth and justice.
That is a powerful summary of what should not be done with regard to dealing with legacy issues. It is shameful that any Government or the people who voted for this legislation in the British House of Commons would put their names to such reprehensible legislation. I compliment the witnesses, their committee and their colleagues on the excellent work they do. They say they have a lot of close contact and interaction with the Department of Foreign Affairs. The Taoiseach, the Minister for Foreign Affairs, other members of the Government and people of all political groupings in these Houses have outlined very clearly and on every occasion their absolute opposition to this legislation.
The Cathaoirleach and my colleague, Senator McGreehan, referred to horrific murders that took place years ago, some carried out by paramilitary organisations and some by British forces. Time is ebbing away. There are families that have campaigned for decades who I and others have supported for years in trying to get justice. This legislation proposes to cut off any avenue to getting the truth, never mind getting a person prosecuted. Those families act with such grace and dignity all the time. All they ever want to get is the truth. There is nothing vengeful about them. They are very gracious. Some of those families have been here at this committee and we meet them in our constituencies. This Bill is telling them it does not matter now what work they have done or what conclusion the investigation might come to. That is all for naught. It is deplorable. It is great that the clear and stark message the witnesses have given with great clarity is not just coming from us as a political message from us as public representatives. It is backed up by international law as well. I compliment the witnesses on their work and they should keep it up.
I welcome the witnesses. I will not go over ground that has been covered. The witnesses have given us a very precise and honest reflection of where we are at with matters of legacy in Northern Ireland. Looking at what is developing across the water today, a new Secretary of State for Northern Ireland has been appointed. Can the witnesses give us any insight into him? Is it more of the same or is he someone from whom we might expect some change? There is talk of an interim leader and Dominic Raab has been mooted. If that were the case, do the witnesses see this legislation being put on hold? What can we as a committee do here? In the statement he made on his resignation, the outgoing Secretary of State, Brandon Lewis, wrote, "A decent and responsible Government relies on honesty, integrity and mutual respect". He said the British Government is no longer upholding those three attributes. Is there merit in us as a committee writing to him and others like him with a view to planting some seeds as to how to get to that point of honesty, integrity and decency, particularly in relation to this legislation?
Professor Kieran McEvoy:
We were just chatting about the new Secretary of State before we came in. Neither of us know him. He was at the Northern Ireland Office previously but neither of us know him or have met him so do not know anything about him. As to whether this will make any difference, it is hard to know. Obviously, we do not know. It is worth putting on the record that I was in the public gallery when the debate on the Second Reading of the Bill was taking place in the House of Commons. Julian Smith, the former Secretary of State, made an excellent and very powerful speech about the Bill and he abstained on it. He, along with the Minister for Foreign Affairs, Deputy Coveney, was involved in re-establishing devolution.
As part of that, there was a commitment in 2020 to implement the Stormont House Agreement within 100 days. That was the last time we saw a kind of sensible diplomatic, bilateral approach with the Irish Government, building consensus with the parties. The Stormont House Agreement was what was signed by the parties. Four of the five parties supported it. The Ulster Unionists were more ambivalent. It was the obvious place if we wanted to build political consensus. The last time one saw common sense and diplomacy was when Julian Smith was Secretary of State, but it behoves all of us to try to build alliances with progressive elements within the British Parliament and British civil society. I absolutely agree that we should all be in outreach mode and work with whatever progressive bits we can find. For example, we took a position on this, that we would not work on technical amendments to the Bill. That is not our natural approach. We are fixers. We are basically nerds trying to help, and doing so in a lawful, human-rights-compliant way, but when the six of us met as a team, we thought we could not be seen to be trying to fix this Bill. It is just not fixable. That is a big thing for us. If it had been a sensible Bill, after the First Reading or the Second Reading, in a normal set of circumstances, we would have been all over it. We would have been working with all of the political parties and the Government basically trying to help to nuance and draw on our international experience and so forth, but we took the view - with a heavy heart - that this is not fixable. That does not mean we are not engaging with people. We are talking to everyone. I think it is the same for everyone. We are all hoping against hope that common sense will prevail and alliances can be built with sensible people on the other side of the water. I do not know whether the shifts in recent days in politics will make any difference.
Professor Kieran McEvoy:
It is a fundamental breach of the Good Friday Agreement because what we have is London reaching deep into the operation and independence of our criminal justice system and deciding who is or is not getting prosecuted. The evolution of justice was central to the agreement, even though it took a bit longer after the signing of the Agreement. The independence of our justice system, investigative mechanisms and the work of our police ombudsman are all part of the devolved settlement and they are all going to be affected.
That is a fair point to make. I do not know if other people found it to be the same, but from the discussions we have had with people, there seems to be an increasing credibility in the system as it has developed up to now. Various people have said that to me.
Professor Kieran McEvoy:
I think that is true. Mr. Holder quoted a number of examples earlier. Without a doubt, there has been a "slow waltz" from different bits of the security establishment in providing information to legal settings. Even within that slow waltz, one sees the power of a judge doing their job properly. Even within the security establishment, there is a fear of the judge. Ultimately, they may mess around and drag things out and so forth, but a judge does strike a certain fear even into elements of the security establishment in terms of getting information. In addition to the cases Mr. Holder was talking about, for example, in the Kingsmill massacre inquest, which has not completed yet, where 11 civilians were murdered by the IRA, more intelligence information has been provided to that inquest than any other in the history of Northern Ireland. That is a judge using their powers to get access to stuff, and then ultimately those families will get more truth. The Lady Chief Justice did the same in the Ballymurphy inquest - using the power of the judge to get the information. Similarly, Jon Boutcher has demonstrated that if you put a decent police officer in and you give them proper powers and they carry out proper investigations and get access to all the intelligence and so forth, you can build relationships of trust with families and get buy-in.
The other tragedy of this is that no families are going to believe that these mechanisms have any credibility, so we are not going to get buy-in from the people they are ostensibly meant to help because no one can trust them. The families see it as being designed to secure immunity for British soldiers. The perception is that they do not really care what happens to the victims. As Jon Boutcher said while giving evidence to the Northern Ireland Affairs Committee a few weeks ago, we might as well build a huge white elephant and no one will engage with it, because there is a also a big question mark over whether perpetrators will engage with it either. If they are not going to be actually investigated and they are not under threat from being prosecuted, why would they come forward? Victims do not believe in it. A white elephant would be built which is designed essentially to secure impunity and it would not have engagement from the victims it is meant to help. It is a tragedy.
Mr. Daniel Holder:
In terms of interventions, again, we go back to the issue of an inter-state case. I am not overly optimistic that there will be a change of direction in terms of whatever is currently happening with the UK Government. I am not sure how much has changed since we came into this room. It was correct to highlight the issues in Brandon Lewis's resignation letter speaking about honesty and integrity. The command paper he produced was an example of big-lie politics. It was deeply dishonest, both the reasoning and what was set out in it.
In terms of the Bill itself, it is through the House of Commons. The only amendment that I think went through was an opposition amendment from the Labour Party that sought to remove sexual offences from the scope of immunity in the Bill. However, that does not actually change it. If that has gone through and it remains within the Bill, someone cannot apply for immunity for having committed conflict-related sexual offences, but they still have a de facto amnesty from being investigated for those offences because the Bill still bans anyone - the police, the police ombudsman or whoever - from actively conducting a criminal investigation. Whatever the role of the prosecutor, the prosecutor cannot prosecute without an investigation preceding that. The very limited powers of the information recovery body may come into play in some of those cases, but they are very limited. A review is not the same as an investigation. It is almost as if we are not just replacing the word "review" with "investigation" but, given the historical distrust for good reason, about the lack of independence and effective Article 2-compliant investigations, there were huge amounts of safeguards built into the Stormont House Agreement Bill in everything that should have been in there. There was a lot in there about how the historical investigations unit would have conducted Article 2 compliant investigations, what were the steps that it had to go through, what were the investigative powers it would have in particular circumstances; how it would comply with Article 2 and; what the final product would be that was delivered to families. There were guarantees in the legislation that the reports had to be "as comprehensive as possible" and to include findings. It is as if someone has gone through this current Bill and taken out piece by piece each and every single one of those safeguards. The type of desktop reviews that will be conducted by these new bodies will not meet those standards. There are no guarantees that families will even know if anyone has been given immunity in a particular case, let alone whether there are any findings in the reports that they get.
Does Professor McEvoy's group have interaction with advocacy groups for victims such as the WAVE Trauma Centre? This type of legislation must be absolutely devastating for its work. Hopes would have been raised to a certain extent with the Stormont House Agreement and the mechanisms that were put in place and were supposed to be implemented. From interacting with those advocacy groups, I presume they are extremely upset and angered.
Professor Kieran McEvoy:
Yes, they are. Across the victim sector, people are very hurt, upset and angry about this. Yes, we do engage across the victim sector. We are the people providing the technical and legal information to victims' organisations and then they make up their own mind on policy issues in terms of what way they want to go.
I wish to say something that is less depressing. In preparation for coming here, we did work previously looking at amnesties and what is permissible in that regard within the European Convention on Human Rights. The first thing to say on that is that there is not a hugely developed jurisprudence, so I am speaking with that caveat. In looking at the memorandum that the Northern Ireland Office produced along with the Bill, it mentions a couple of the cases - you do not need to worry, Chairman, I will not go into all the legal cases - but I will pull out two or three important points just to get them on the record. In looking at the jurisprudence and whether the amnesty Bill might be found to be lawful, the answer is, probably not. If, for example, an interstate case was taken, from looking at the jurisprudence, there is a strong possibility that the case would be won.
Under the limited jurisprudence to grant amnesties, an amnesty has to be deemed necessary. It might be necessary where there was an ongoing conflict and the violence would continue unless an amnesty was secured as part of a broader process to end that conflict, but we are almost 30 years on from the ceasefires. Is it the idea that this is being done as something that is necessary for the peace process?
An amnesty would be required to balance the state's legitimate interests - I stress the word "legitimate" - with the individual rights of people affected by the amnesty, who are victims in this context. In the European human rights system, you cannot interfere with rights under Articles 2 and 3 to effective and independent investigations. A court will examine whether the amnesty is a legitimate state interest. If there is a long goody trail of evidence suggesting that the driver behind the amnesty is to achieve immunity for state actors, it is unlikely that a court would find that to be a legitimate state interest.
There is a tangential reference to the notion of reconciliation in two of the cases, but it is something of a sidebar discussion. Obviously, the British Government has latched onto framing this initiative as a reconciliation process and to privileging history and memorialisation as part of the broader peace and reconciliation process. A court will examine whether it is a genuine reconciliation process. It is difficult to see how it could be sold as a genuine reconciliation process if it is opposed by all of the political parties in Northern Ireland, the Irish Government, the victims' communities, civil society, churches, trade union movements and so on. As a lawyer, I would have to stand up and try to make the argument before a number of judges that this was a genuine reconciliation process knowing that the other side was going to hit me with the reality of what was happening.
In no circumstances in the jurisprudence can there be an amnesty for torture. That is covered by Article 3. The state can lawfully kill people in certain circumstances, for example, in a shoot-out between police officers and armed robbers. The State can never lawfully torture someone. Non-state actors, such as people involved in punishment violence, can never be amnestied; this amnesty would cover those.
The "good" news is that, if the Irish Government decided that it was in its interests to make an interstate challenge as probably the quickest and most effective way of tackling the amnesty instead of waiting on individual victims to get through all of the domestic processes before going to Strasbourg, there is a strong chance that it would win. That is the cheerier bit of this discussion. It would be for the court to decide, of course, but having re-examined the jurisprudence around the space for amnesties, I do not see this amnesty meeting those tests.
Professor Kieran McEvoy:
Yes. The timeframe is normally four months once the legislation goes live. As Mr. Holder mentioned, there would also be a requirement to exhaust domestic remedies. The Northern Ireland Human Rights Commission could take a legal challenge, but that would be for it to determine. Once such a challenge was up and running, it would be viable for this State to seek interim relief measures. This is such a compelling and important issue and the stakes are so high in terms of human rights that, if a case taken by the Northern Ireland Human Rights Commission or an individual victim was up and running, this State could make an interstate challenge and ask for interim relief measures until the case or cases had run their course.
The witnesses' contributions have been helpful.
Moving on to the second round, I will ask a question. A solution was found to the problems in South Africa that was acceptable, but this legislation clearly is not acceptable. What should we do now to-----
Professor Kieran McEvoy:
The South African example is an interesting one because the British Government has made reference to it, albeit in a misleading way. In the South African truth and reconciliation process, the Committee on Human Rights Violations undertook investigations. While it was possible to get an amnesty, the amnesty process was pursued in the completely opposite way to what the British are proposing. The South African amnesty committee was chaired by a judge, so it was a quasi-legal hearing. Victims were present and legally represented during those discussions, some of which were televised. The criterion for the applicant to be successful was full disclosure. If the judge made a determination that the applicant had continued to lie or had not fully disclosed, the application would fail. There were 7,000 applications for amnesty, but I believe that only 1,000 plus succeeded. Many applications were knocked out because the judges determined that people were not engaging in full disclosure.
Professor Kieran McEvoy:
An honestly held belief. This is all going to happen behind closed doors. There will be no hearings and no legal representation for victims. In our reading of the legislation, it does not appear to us that an individual victim will even know whether a person has been given an amnesty in the victim's case. At the moment, the legislation requires what looks like a statistical table showing how many amnesties have been granted per year, but the victim would not know from the report provided by what we see as the toothless review mechanism whether an individual perpetrator had benefited from impunity under that process. How is any victim meant to believe in the credibility of such a process?
I will make a final point about the South African example. The amnesty committee was holding its hearings and the human rights violations committee was doing its work. The ANC and the other elements of the liberation forces sold that to their supporters as being the moment when people could come forward in the national interest and there would be a truth and reconciliation process, but that once that process was completed, prosecutions would be back on the table for people who did not engage - South Africa was not getting rid of prosecutions altogether - and the resources of the state would be deployed towards those prosecutions. For other political reasons, there was a haphazard set of prosecutions afterwards, but the deal was that there would be a moment in the country's history, there would be a proper truth and reconciliation process requiring full disclosure and at which victims were legally represented - a significant number of applications for amnesty were rejected - and prosecutions were meant to happen afterwards. Interestingly, prosecutions are now happening 20 odd years later because there has been a change in government and the ANC is now more interested politically in ensuring that prosecutions happen. There are also inquests up and running to deal with apartheid era issues. The normal legal process is now running its course. Under what the British are proposing, though, it will happen behind closed doors, there will be no legal representation for victims, victims might not even know that amnesties have been granted and it will all be finished after five years with a presumptive amnesty, meaning no prosecutions, inquests or anything else.
I thank the witnesses for their presentation. Professor McEvoy spoke about inquests as well as the power of the judge. This weekend, the Springhill and Westrock families will march to their garden of remembrance. A delegation from our committee met the families to discuss the importance of the inquest. I am speaking on the hop, but I believe that the families received a preliminary date this week or at the end of last week. What would be the status of such inquests, including those announced between now and the legislation's passage, should this legislation come to pass?
What is Professor McEvoy's view on this? With a focus on inquests, what will be the impact of the lack of inquests for families? What will this mean for them and for the broader issue of the judicial system?
Professor Kieran McEvoy:
As the Senator will be aware, the previous Lord Chief Justice came up with a five-year plan to deal with the legacy inquests that were still in the system. At that juncture, there were 50 cases involving 96 deaths. We are in year three of that plan, which was slightly delayed because of Covid. I do not know what will happen in that case, but the legislation is suggesting that one must reach a "substantive hearing", which, I believe, is the phrase used in the legislation. We were looking at the numbers this morning, and it looks to us as though there will be at least 24 cases in years four and five of people who will be cut off, basically because they were at the back of the queue. That is it. Families who have been waiting for more than 40 or 50 years will be told that they were a bit unlucky, that they ended up in year four or year five of the Lord Chief Justice's plan and that the guillotine is coming down, but not to worry because they are going to have a lovely museum, an oral history process or an official history of the conflict. That is not going to get their hearts racing. Can people imagine that a family was just unlucky to be in year four or five of the queue and therefore they are out?
Mr. Daniel Holder:
A similar issue applies to the Office of the Police Ombudsman for Northern Ireland. Most recently we have had 450 outstanding complaints. It is unlike the Stormont House Agreement, which allowed inquests to continue as a separate process. Under the Stormont House Agreement there would have been a transitional period between the Police Ombudsman for Northern Ireland and an independent investigative mechanism with proper teeth. This process guillotines Police Ombudsman for Northern Ireland investigations. There are 450 outstanding complaints within that system
I have a number of comparative questions and observations based on the statements. I thank the witnesses for the comprehensive work they have done on this matter. We on these islands have been led a very merry dance by Tory backbenchers in recent years. To me, this proposal is especially egregious because it involves absolutely no reference to a democratic mandate of any kind. However regrettable Brexit and its consequences are, at least it was linked to a democratic process. This is much less so.
As one of the witnesses said, it undermines the rule of law and interferes with the justice system. It provides a pathway grounded in the historical responsibility of the United Kingdom and what that has meant, both internationally and in the context of international law, regarding other nations just ignoring human rights obligations. That is vital at a time of increased importance in the context of the commitment to the rule of law and to human rights internationally. The situation could not be more febrile.
There is nothing serious about reconciliation in the Bill. Please correct me if I am wrong, but as I understand it - and some of those parties are represented here - other parties in Westminster have attempted to delete the substantive clauses in their entirety, which seems to be a completely inappropriate legislative response.
The associated proposal around the official history could not come at a worse time, or from a worse Government with the worst record, when it comes to the effort to look at an official documentation of history. I thank the witnesses for acknowledging the substantial efforts of the Irish Government and our diplomats to divert the UK from this genuinely reckless and damaging course of action, notwithstanding the efforts of the British diplomatic system to wrap the Irish Government up in this Bill at different points. Perhaps that was then and one must always be optimistic in politics in order to really get things done. Maybe there is an opportunity, at either a political or diplomatic level, or both, to genuinely reset this. I really do hope that this may be so.
My questions are about two matters, namely, the establishment and the re-establishment of the facts. If it is to be reset, then it is important that these are clarified. Professor McEvoy refers in his submission to "misleading and inaccurate assertions concerning a ‘witch-hunt’ against British Army veterans" and "the real driver for the legislation is to curtail investigations into the UK military and to ‘take back control’ of the narrative of the conflict" We have a little bit of time, so will Professor McEvoy take a moment to set out some examples of that? I will then ask some further questions on the background of the data and comparative analyses.
Professor Kieran McEvoy:
There are a number of components to the fake news stuff around the rationale that was used to justify the command paper and, by extension, the new Bill. It is useful to put these components on the record. We have written a detailed report on all of this but I will summarise it. One component of the witch-hunt narrative against veterans was that the DPP in Northern Ireland had, in effect, been biased by pursuing prosecutions against State actors. These figures may be slightly out of date since we completed the report but the onus shifted that significantly. Since 2011, the DPP has initiated 17 conflict-related prosecutions, eight against republicans, four against loyalists and five in state cases involving six soldiers. Four of those state-actor cases collapsed for different legal reasons. In one instance, the defendant died. Another case is ongoing, so I will not comment on it. That was one element of the narrative in respect of which the DPP was involved.
Professor Kieran McEvoy:
Four cases collapsed for legal reasons. In one case, the defendant died. Another case is currently before the courts. There is a legal challenge to one of the cases that collapsed, which is ongoing. Again, I cannot speak on that.
The second element to it all is that the investigations being carried out by different policing mechanisms were biased and again, were state-centred and focused on state actors. One element of that narrative basically was that there was a disproportionate number of state-actor cases being focused on by the Historical Enquiries Team and, when that was disbanded, by the legacy investigative branch of the PSNI. The state is directly involved in this regard. Leaving aside the issue of collusion, which is a significant issue, the state is directly involved in approximately 10% of the overall fatalities in the conflict. In some elements of this narrative, it was asked why there are so many cases when they are such a small percentage? The key issue that bulks up the number of cases being investigated initially by the Historical Enquiries Team and then by the legacy investigative branch is an acknowledgement that, particularly between 1970 and 1973, the Royal Military Police was carrying out the investigations. Those investigations do not stand up as proper investigations. In effect, they were operational reviews as to what happened. Witnesses often were not questioned and people were not interviewed under caution. The lack of legal rigour in some of those cases is why prosecutorial cases have fallen apart. A very critical review was carried out by Her Majesty's Inspectorate of Constabulary on the work of the Historical Enquiries Team and the way it went about investigating those state-actor cases in 2011 and 2012. Basically, the Chief Constable accepted that all of those needed to be done. That was 238 cases. I can send the information on to the Deputy.
Professor Kieran McEvoy:
That is no problem. I will send it on.
It must be borne in mind when considering these cases that the state is responsible for 350 deaths overall: some 300 by the army and the rest by the police. In the context of those cases, 170 people were killed between 1970 and 1973. Of those, 63% were indisputably unarmed, only 12% were armed and 14% were possibly armed. No one was prosecuted at all. No state actors were prosecuted at all during that period. The investigations that were carried out have repeatedly found that a number of judgments in the North have been rudimentary and have not met a standard. That was accepted by the Chief Constable. The idea that the police were unbalanced in their investigations is because the investigations were not properly done in the first place. Therefore, the caseload for state-actor cases got bumped up because they were not properly investigated and there is a legal obligation to do so.
The third element of the witch-hunt narrative is that the early release mechanisms favoured the non-state actors. The early release provisions were in the Good Friday Agreement. This is sometimes written about in simplistic terms in the British tabloid media to say that all the terrorists got out of jail early but "our boys" did not get an equivalent. The reason is that they were not prosecuted and were not in jail, by and large. The legal point is actually more interesting. When the Good Friday Agreement was signed, there were two state actors in prison. Four were in prison for murder over the whole period of the conflict. All were released early using different mechanisms, but there were two in prison at the time the Good Friday Agreement was introduced. When that mechanism was established, it was independent through the sentence review commission. Once the early release provisions of the non-state actors are about to commence the UK Government politically, and perhaps understandably, wants to get its people out first. This is because of political optics.
It therefore approached the Sentence Review Commission and, essentially, said, "We want our two guys at the top of the list." I know this because I have talked directly to the chair of the commission. He then said, "Well, no, we have a system here. Obviously, they are eligible for release, but we have a way in which we will address them and they will join the queue, in effect." Then the Government used, I think, the Prison Act to get them out first. The point about all this is that this applied to state and non-state actors. There were very few state actors in for other reasons, but the early release provisions applied equally to the state and the non-state actors. The British Government, however, wanted for political reasons to get them out before the non-state actors were released so it used a different mechanism.
I am sorry. This is a complicated answer.
Professor Kieran McEvoy:
The final part of the witch hunt narrative is the on-the-runs. As members will be aware, there was a system whereby, after negotiations between Sinn Féin and the UK Government, people who were on the run, that is, people who had left the Northern Ireland jurisdiction and were not sure whether or not they could return, were sent letters. Those were letters of comfort and, in effect, would say whether or not you were a person of interest and whether or not there was evidence against you. They were not an amnesty. One person who benefited from one of those letters is actually before the courts. The letters were simply statements to the effect that "this is the evidence at this moment", but if somehow your fingerprints or DNA were found on something, you would be liable to be prosecuted. Lady Hallett, a very distinguished judge, did a review when this story broke. It was very explicit and clear that these were letters of comfort and, in terms of legal significance, were not amnesties because if evidence came forward and you were liable to be prosecuted, you would be prosecuted. It is like intellectual whack-a-mole with this stuff because one silly argument is presented and you knock it down and another pops up and you just have to nerd away and keep at it. That is the witch hunt narrative. The UK Government has backed off on some of those arguments publicly but still keeps trotting them out. One is sort of burdened by fact and knowledge in some of these interactions.
That is the witch hunt narrative. It is fake news.
I greatly appreciate the witnesses taking the time to set that out. It is important to re-establish facts where we have the opportunity.
I am really interested in comparative data and the fact that the witnesses have done an analysis of the different international processes and how this process rates against the others. I am curious about the structure of the assessments. Maybe we can talk about that afterwards because I know how detailed it might be, but when Professor McEvoy was describing the cases being heard in privacy and without legal representation and so on, I was imagining placing those structures on, say, a rape trial or another in cameraprocess without the ability to cross-examine and, if, for example, the Legislature here were to propose such a model in respect of any criminal trial or indeed any process whatsoever, even an employment law process, what the academic reaction would be to that. Professor McEvoy described the London Government as reaching into the criminal justice system in every form and in every possible way, including the Police Ombudsman for Northern Ireland, the DPP and the courts system. Is there any other comparative example of a federalised political structure whereby one element reaches into the other and disrupts it in such a fundamental way? I certainly cannot think of anything. One could not possibly imagine Canada, for example, or any other such state doing likewise. I know they are not directly comparable, but they are very similar in various ways. As for the different international processes, it is sort of the same question about the data points, the comparative analysis and how those were ranked and scored and the different things the witnesses have tested. Is there anything else remotely close to what is suggested here, or just how far does it sit out against the comparators?
Professor Kieran McEvoy:
-----in comparative data, Louise is the person to talk to, certainly about amnesties. It is quite useful to us as a resource to have every amnesty since 1945 and to be able to benchmark the proposed command paper against that. In doing so, we focused on the Pinochet example because it was so obnoxious. One would think that Pinochet was-----
Professor Kieran McEvoy:
Yes, but Pinochet's amnesty was less ambitious than the proposed command paper. Pinochet's amnesty did not, for example, interfere with cases that were already before the courts, did not interfere with civil actions and did not allow for amnesties for rape or crimes of sexual violence. The UK command paper did. When it comes to persuading the public, even just saying that this is what this looks like and that it is worse than Pinochet-----
Obviously, there are opposition parties in the United Kingdom. I do not mean this in a rude way, but what effort was put in to make sure that the arguments the witnesses are making now and that we are hearing were made to members of the UK Parliament? I would have thought that the Labour Party at least would take an interest in the point about Mr. Pinochet and company because Pinochet was a dictator and murdered all around him and absolved the criminals.
Mr. Daniel Holder:
We did precisely that. We engaged with the UK opposition parties and gave evidence to parliamentary committees in Westminster on this particular point. Ultimately, all the opposition parties in Westminster have opposed this Bill, including the current attempts to make the amnesty look less harsh.
I know other members want to come in. When a state actor who died during a legal process was being buried in the UK, there was a huge crowd at his funeral. We watched it on the television. The crowd included Members of Parliament and so on. He was a hero to those people. In other words, there is a huge issue with the policy we are making being reflected in the media or in people's understanding in the UK. I know it is a different issue, but it seems to me that those points are not getting through.
Professor Kieran McEvoy:
I agree. We were very cognisant of the emotional resonance of veterans in the British national imagination and the way in which British people see themselves and the way in which veterans are respected. That is precisely why we spent about nine months engaging with the British Army and a whole range of other stakeholders in trying to find a workable solution that would have kept elderly veterans and non-state actors out of jail but would still have upheld Article 2-compliant investigations. Victims would still have had a day in court, still leaving open the possibility of prosecutions but reducing jail time to zero. That was in recognition that that is the political reality and that there is a degree of sympathy for veterans, which is understandable, so the idea was to work with that political reality and to try to find a human rights-compliant and lawful way of doing it. That is what we did and we came up with such a solution but it was not enough.
Professor Kieran McEvoy:
We have used different streams. In the UK academic sector, we applied for independent funding from research councils. It is the same as with the Irish Research Council. We have had a number of grants to work on legacy-related activities and have worked with our colleagues in the Committee on the Administration of Justice.
I wish to take the discussion back to the politics of this. What is the politics behind this legislation? We are talking about veterans. Are veterans a key demographic within the British electoral system that the Conservative Party is trying to get support from or to target? What are the actual politics behind putting that legislation through? The Conservative Party, since 2010, has gone from maybe moderate conservatism in some respects under David Cameron and the types of people who were in his cabinet to whatever you had with Theresa May to an extreme form of conservatism under Boris Johnson. Can the witnesses identify the turning point within the Conservative Party at which legislation like this became something it wanted to introduce? There is a reason it is being introduced 11 years into a Conservative Government as opposed to in the first or the second term. Something has changed. Has something changed in that there has been a sea change in the type of MPs who have been elected, or did the sea change occur under the premiership of Boris Johnson, or after Brexit, for example? My questions are what the politics behind this legislation are and who in the British electorate the Conservative Party is trying to appeal to by getting this across the line. Furthermore, at what stage within the Conservative Party did a sea change occur such that it felt that legislation like this would be a good idea?
Professor Kieran McEvoy:
That is a really interesting question. Obviously, there has been a rightward shift in UK politics since Boris Johnson came to power. Interestingly enough, my colleague, Dr. Bryson, and I are writing something academic on this.
I was going through tabloid newspapers from during the elections before the leadership of the Tory Party. At that stage, The Sunproduced a stand up for our veterans campaign and a set of pledges requiring the signatures of leaders who were running for the Conservative Party leadership at the time. Boris Johnson signed up to that pledge, in effect, to get our boys off from being pursued. Obviously, it is linked to Brexit and all that right-wing populism and the tabloid media and all of that.
The other significant thing that happened within the Tory Party was the emergence of the Overseas Operations (Service Personnel and Veterans) Bill. There was an investigation into the activities of allegations of torture by British soldiers in Iraq and Afghanistan. The courts held that in places where the UK, in effect, had sovereignty over territory, the European Convention on Human Rights applied. Therefore, those people were able to sue. They had Article 2 rights to proper investigation and Article 3 rights for torture and so on. I think there was outrage within the military establishment within the Tory Party at this idea that courts were reaching deep into the military operations in theatre and there was a big reaction to that.
Part of it is anti-European Convention on Human Rights and part of it is also anti-left-wing human rights lawyers. That has become increasingly part of the populist discourse in the Conservative Party. Brexit kind of let loose that English nationalist instinct and populism and the veterans became like the epicentre of this imagined version of the English past and also going forward.
It is a complex thing but in particular, the sea change where we saw the shift from the UK Government saying let us manage this sensibly with the Irish Government and engage with all the local Northern Ireland political parties was when the Overseas Operations (Service Personnel and Veterans) Bill came in and the UK Government then made promises that our boys who served in Northern Ireland would be given the equivalent levels of protection in terms of the presumptive amnesty. That is where it turned.
Mr. Daniel Holder:
The Overseas Operations (Service Personnel and Veterans) Bill was introduced in March 2020 on exactly the same day. This was in stark contrast to what the UK Government agreed in the New Decade, New Approach deal, which was that it would legislate with the Stormont House Agreement within 100 days. Instead, within about 90 days, it did a complete U-turn and announced that this same approach of impunity, which was in the overseas operations Bill, would be applied to Northern Ireland.
As well as that, though, there was a very organised military lobby. Of course, as Professor McEvoy referenced earlier, this was about much more than just keeping soldiers out of jail because there were much easier ways of doing this. There is a broader politic behind this that is really about cover-up and concealment and seeking to maintain an official narrative of truth and history. That is an official narrative of truth and history that seems to involve an absolute denial that patterns of human rights violations took place, which are increasingly evidenced by independent investigations, such as collusion, torture and other right-to-life issues. It is a sort of version of official truth that denies that this ever took place. When we look at the array of mechanisms that are now in place and the level of control over reviews the UK Government will exercise at absolutely every level, it has gone much further than just keeping soldiers out of jail. It is really about ending meaningful and independent investigations.
Ms Michelle Gildernew:
Professor McEvoy and Mr. Holder have given us an amazing insight into the legacy Bill but I think Mr. Holder's last point is the key one. It is my view that this is all happening so that the British Government never has to admit to the decisions it made with regard to our people. We have just been through the Aidan McAnespie trial. It is clear that a decision was taken and carried out, and it was no accident - someone made a decision to shoot Aidan McAnespie dead. There is much in there.
To my mind, the fact that Boris Johnson had the cover and amount of support in Westminster to be able to bring this through, along with the massive shift to the right post Brexit, means this is a British Government trying to rewrite history in order to be never held accountable for what it did here. I definitely think that. If Mr. Holder would like to expand on it, that would be brilliant. It has been an excellent discussion, however. I thank both Mr. Holder and Professor McEvoy.
Mr. Daniel Holder:
Okay. Let me give Ms Gildernew an example from the command paper itself, which includes the following sentence: "Security Forces were responsible for around 10% of Troubles-related deaths - the vast majority of which were lawful." That is a position put forward by the UK Government. First of all, the 10% figure clearly represents an absolute denial that any collusion ever took place because that is just the figure for persons directly killed by the security forces. Clearly, the phrase the "vast majority" of killings by the security forces were lawful is problematic on a number of levels. Clearly, that assessment cannot be made when state killings were never effectively and independently investigated. It is also problematic in the sense that it implies that most of the people who were victims of the state were guilty of very serious offences at the time they were killed, otherwise the killings would not have been lawful.
We put in a freedom of information request. It is a very grand claim to make. We put a freedom of information request into the Northern Ireland Office to get hold of the assessment it conducted to reach that particular claim. The response we got was that it held no information in relation to that particular claim. We pushed back at it to ask how it made the assessment. Did it just make it up or was there something upon which this was based? What it came back to was that very few people were convicted and, of course, we know the reason that is the case. We have been through it already today. The rule of law was simply very rarely applied to the security forces in those circumstances and that explains the very few convictions. Other areas of law were alluded to earlier, where there were sexual offences, in particular, where there are very few convictions. It does not mean offences did not take place. It is, therefore, extremely problematic to have that type of official truth, which is clearly not grounded in any credible assessment, being produced in an official policy paper. If this legislation goes through, I would anticipate seeing much more of that.
Professor Kieran McEvoy:
Can I come in on that point as well? There is one thing that sometimes gets missed out on here, and this goes back to Deputy Brendan Smith's comment about the international experience. One of the reasons to set up effective independent truth recovery mechanisms with real powers, be it a truth commission or whatever, and to appoint people with real public credibility who are independent is to get the ugly truth about all the protagonists to the conflict. That includes the non-state actors. That includes loyalists, republicans and the British state.
With the Stormont House Agreement, we were finding a way to address the ugliness of all the responsibility of all the different actors in the conflict. The problem with the establishment of a process like the one we are discussing is that it is obviously designed to achieve impunity for state actors and to rewrite the narrative about the blamelessness of the state. It is not going to work and it will allow parallel histories to exist. People are still going to have their own views on what happened, but there will be no central overarching mechanism or process with credibility that covers the culpability of all the actors. It sometimes allows, in some ways, some of the horrors of the non-state actor groups to be obscured by the UK's efforts to hide its own ugliness. If we had an independent process completely independent from the Secretary of State, with proper legal powers, proper investigations and victim's rights upheld, we could at last address our past properly in all its complexities and with the culpability of all the actors to the conflict.
Okay. Does anybody else have any other comments before we close? I have more of a historical question. I remember when Steve Biko died in South Africa. What happened to him was appalling. Was there ever an outcome to his death in terms of what happened?
This has been a very rewarding discussion. I am especially interested in the comments on truth and justice into the future that Professor McEvoy made when summing up. We should try to address that matter, because it would give closure to everybody and reveal the truth. If it is about truth, then putting all of those things into perspective and getting truth for all of those people who suffered is the key.
I thank Mr. Holder and Professor McEvoy for attending. They gave powerful testimony, which shows just how off-beam this legislation is and how out of touch the British Government is in the context of its understanding of a solution to our problems. Truth and justice, as was said, have absolutely been denied.