Legacy proposals welcomed but further work needed on human rights
The Northern Ireland Human Rights Commission has today published advice on the Northern Ireland Office consultation addressing the legacy of the past and the accompanying draft Bill. The advice sets out over 80 recommendations.
Chief Commissioner Les Allamby commented:
“The Commission welcomes the draft legislation and acknowledges the consultation and draft bill as a positive step forward by the Northern Ireland Office. However further work needs to be done to ensure the key principle within the draft bill that ‘human rights obligations should be complied with’ is met in practice.
Our advice sets out in detail what we believe is required to make the proposals fully human rights compliant. We believe that the Stormont House Agreement mechanisms must be up and running as soon as possible. The proposed mechanisms must be adequately resourced to allow them to work.”
On the subject of investigating conflict-related deaths, the Chief Commissioner stated:
“Having considered the planned remit of the HIU, we are recommending that assessments of all PSNI Historical Inquiry Team, Legacy Investigation Branch and Police Ombudsman previous investigations into deaths are conducted to determine if they are human rights compliant. If found not to be compliant, a case should fall within the remit of the HIU. Conducting the assessments should not however prevent the HIU beginning its work on the outstanding investigations.
The Commission also recommends that a firm commitment be made to fund the Lord Chief Justice’s plans for addressing outstanding legacy inquests. We have highlighted our concern that in the absence of necessary resources the obligation to deliver these inquests will not be met.”
Commenting on the rights of injured victims and survivors, the Chief Commissioner said:
“The Commission is concerned that a number mechanisms required to protect and fulfil the human rights of victims are missing from the proposals. This includes the absence of a mechanism to investigate serious ‘Troubles-related’ human rights violations and abuses other than deaths. There is a continuing requirement in these cases to ensure effective official investigations, with a particular emphasis on those who were injured and subjected to torture, cruel, inhuman or degrading treatment or punishment through acts of terrorism and by the State.
The Commission has also made a number of recommendations regarding services for victims that we consider fundamental. We have advised that implementation of a comprehensive Mental Trauma Service must be prioritised. We welcome the commitment to establish a pension for those severely physically injured and would recommend that this too is implemented without delay.
The Commission further recommends that provision is made for appropriate rehabilitation for those who do not fall within the Mental Trauma Service or pension, or for whom another or additional form of reparation is more appropriate to ensure that the State fulfils its obligations to provide an effective remedy.”
Addressing the question of a statute of limitation or amnesty, the Chief Commissioner commented:
“We remain aware of the discussion and advocacy by some for a statute of limitation applying to members of the security forces. The Commission reiterates its previous advice on the House of Common’s Defence Committee report ‘Investigations in fatalities in Northern Ireland involving British military personnel.’ A statute of limitation would amount to an amnesty and this is incompatible with human rights law.
However, the Commission welcomes confirmation in line with our previous advice that there will be amendments made to the Northern Ireland (Sentences) Act 1998 to ensure that anyone convicted of a ‘Troubles-related’ offence committed between 1 January 1968 and 10 April 1998, including members of the security forces, will be eligible to apply to the accelerated release scheme.”
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Notes to Editors:
1. The Northern Ireland Office is consulting the public on ‘Addressing the Legacy of Northern Ireland’s Past’. The consultation closes at 5pm on 10 September 2018. Access the consultation here.
2. The Northern Ireland Human Rights Commission functions include reviewing the adequacy and effectiveness of law and practice relating to the protection of human rights. In accordance with these functions the following statutory advice is submitted to the Northern Ireland Office (NIO) in response to its consultation on addressing the legacy of Northern Ireland (NI)’s past. Read the Commission’s full advice on its website www.nihrc.org
3. Summary of the Commission’s recommendations:
1) The provisions contained within the Bill are not fully human rights compliant in law and practice and the Commission recommends that this should be remedied.
2) The timeline of each institution set out in the draft Bill meshes in a reasonable way.
3) The consensus on the final detail of the proposed mechanisms, including their operation and outcomes, is human rights compliant.
4) Prompt, effective steps are taken to expediently investigate other serious Troubles-related human rights abuses and violations in instances where the victims have not been killed, introduce a pension for severely physically injured victims in NI, and introduce advocate-counsellor assistance. These lacuna should be promptly and effectively addressed either in the Bill or using other effective mechanisms.
5) Human rights compliant provisions must be expediently made for the effective official investigation of all other serious violations or abuses of human rights, in particular allegations falling under the prohibition on torture, cruel, inhuman or degrading treatment or punishment. A degree of flexibility is required to ensure that moving forward with investigating Article 3 ECHR cases does not delay the investigation of Article 2 ECHR cases, and vice versa. Thus, Article 3 investigations do not necessarily have to be conducted by the HIU and an additional investigative mechanism may need to be created to deal with such cases. Furthermore, any issues around the remit and operations of the investigative body tasked with investigating Article 3 cases should be expediently resolved to ensure no further delays.
6) Calls on the NI Executive to fund the Lord Chief Justice’s plans for addressing outstanding legacy inquests. The Commission highlights concern that, in the absence of the necessary resources, the legal obligation under Article 2 ECHR on the State to deliver these inquests will not be met. In the continued absence of a devolved government, the UK government should take responsibility to ensure the funds are in place.
7) The implementation of the SHA commitment to a comprehensive Mental Trauma Service is realised without any further delay.
8) The Mental Trauma Service is adequately resourced and that those funds are ring-fenced to enable this service to meet the needs of victims to give effect to the State obligations to provide rehabilitation, as a form of effective remedy.
9) Welcomes the commitment to establish a pension for those severely physically injured victims and would recommend that this is implemented without any further delay.
10) Provision is made for appropriate rehabilitation to those who do not fall within the pension or mental trauma service, or whom another or additional form of reparation is more appropriate to ensure that the State fulfils its obligations to provide an effective remedy.
11) Any specific advocate counsellor or other additional provision to support victims and survivors should be realised without further delay.
12) The draft Bill is amended to include the IRG as having a role in making recommendations in respect of statements of acknowledgment which would be directed to the governments of the UK and Ireland. Alternatively, and separate to the Bill, the Commission recommends that there is a clear statement of intent from both governments as to how they intend to progress this commitment of the SHA.
13) The UK government accepts the application of UN Security Council Resolution 1325 in NI and that the proposed mechanisms in the Bill and any additional mechanisms introduced to address the identified omissions make specific provision for women’s involvement and effective participation at all stages, including design, implementation and evaluation.
14) The Bill includes a provision to ensure that all the mechanisms are adequately resourced in order to expediently and effectively perform their tasks.
15) Safeguards should be in place to ensure that the continued lack of a devolved government should not negatively impact the operations and resourcing of the relevant mechanism.
Historical Investigations Unit
16) The HIU is promptly established and effective safeguards are in place to ensure it is human rights compliant, in line with the general principles set out in clause 1.
17) The HIU is established for the purpose of fulfilling the Article 2 ECHR obligation that all Troubles-related deaths are effectively investigated. This includes considering the structural and systemic dimension of violence and rights violations and abuses.
18) The HIU to be appropriate for undertaking investigations into ‘Troubles-related deaths’ it must operate in line with the minimum human rights requirements established by the ECHR jurisprudence and this should be reflected within the wording of clause 7.
19) An assessment of all HET, Police Ombudsman and LIB cases is conducted by the HIU to determine if they are human rights compliant or not. This may require the creation of two departments within the HIU – one to conduct Article 2 investigations and one to consider the human rights compliance of previous investigations conducted by the HET, Police Ombudsman and LIB. Those cases found not to be compliant with Article 2, should be reopened and subject to an expedient and effective investigation by the HIU. The Commission recognises the resource implications of this requirement, but this approach is necessary to ensure human rights compliance, in line with the general principles set out in clause 1.
20) Schedule 6, paragraph 3 is amended to enable the HIU to conduct, at a minimum, a targeted consultation on the procedure.
21) Further amendments of Schedule 6, paragraph 3 are required to ensure the HIU has a duty to be accessible to members of the public who wish to provide evidence relating to a death.
22) Clause 5(6) is amended to include acts of violence or force allegedly linked to the NI conflict.
23) Clauses 9(4)-9(8) are removed and that clause 9 is redrafted to ensure that where there are concerns that a human rights compliant investigation has not yet been conducted into a death, the Director must authorise an investigation by the HIU.
24) The HIU is adequately resourced to ensure it has the capacity to promptly conduct investigations and to promptly process and effectively store the case files and information that it receives.
25) The Police Service NI and Police Ombudsman are adequately resourced to ensure that these institutions can promptly transfer all relevant case files and information to the HIU.
26) Clauses 8(2) and 8(3) ensure compliance with the overriding obligation to ensure effective Article 2 compliant investigations into all deaths, this includes cases completed by the HET, LIB and the Police Ombudsman.
27) Schedule 12, Paragraph 3(1) is redrafted to ensure that a coroner has the ability to hold an inquest into a death that is within the HIU’s remit when this is necessary to ensure an Article 2 compliant investigation is conducted.
28) Once established, the HIU conducts its investigations with reasonable expedition.
29) Clause 37(2)(b) is amended to enable repeat year-long extensions. A review process for whether a further extension is required should be established, with the determining factor being whether more time is required to ensure all investigations in the HIU’s remit are thorough.
30) It is added to the list of specified consultees as set out in clause 37(7).
31) Sufficient resources are provided to the HIU to ensure all of its investigations are thorough and meet human rights standards.
32) Schedule 12 includes effective safeguards to address any direct involvement with a case or unavoidable conflict of interest that arises due to the HIU cooperating with another investigative body. This is required to ensure the independence and impartiality of the HIU’s investigative process.
33) A provision is inserted that clearly sets out the HIU’s requirement to take the necessary steps to protect witnesses, victims and their relatives and persons conducting the investigation from threats, attacks and any act of retaliation or intimidation.
34) Provision is included in Schedule 7, paragraph 2 to ensure all lines of evidence can be followed, in the interests of conducting a thorough investigation.
35) To ensure the HIU has the powers to conduct a thorough investigation, that clause 25 is amended to extend the HIU’s powers of compellability to all reasonable lines of inquiry, which includes all relevant public authorities and relevant private individuals. This amendment should include the relevant safeguards required to ensure that the powers are not arbitrarily exercised, for example some form of judicial oversight should be available to allow for a challenge where these is a dispute. This amendment should also include the process for notification of compellability, for example the requirement of a warrant.
36) Clause 25 is amended to make it clear that the HIU can compel all reasonable written, oral and material evidence.
37) Clause 25 is amended to clarify what the penalty is for non-disclosure, only partial disclosure or deliberately misleading disclosure.
38) Every effort is made to ensure that the HIU’s Director and as many members, officers and appointments panellists as possible are independent and impartial, in line with the ECHR’s jurisprudence.
39) The draft Bill makes provision for safeguards to ensure that anyone appointed to the HIU that was directly involved in or had an unavoidable conflict of interest cannot interfere with the affected HIU investigation.
40) Schedule 4, paragraphs 1(2) and 2(2) include a requirement that where any HIU case is transferred to the Police Service of NI, a police force in Great Britain, or the Police Ombudsman that the new investigators are independent and impartial in line with ECHR jurisprudence, and were not directly involved in or have a conflict of interest in any case they are tasked with investigating.
41) It is specifically stated that a final decision regarding clause 10(4) should ensure independence and impartiality.
42) To avoid a conflict of interest, Schedule 1, paragraph 3(7) of the draft Bill is amended to require that the attendance of non-committee members at meetings of the committee and sub-committee must have a specific purpose and be reasonable.
43) It is specifically stated within Schedule 12, paragraph 8 that any sharing of facilities are setup and secured in a way that maintains independence and impartiality.
44) Clause 37(3)(b) is amended to state that “with reasonable justification” and “in line with human rights standards”, the Department of Justice or the Secretary of State can make provision to wind up the HIU at any other time. A statement setting out the reason why should be made to the NI Assembly or UK government, as appropriate.
45) Clauses 7(2) and 18(3), and Schedules 9 and 10 reflect the principles of necessity, reasonableness, proportionality and legitimate aim to ensure any restrictions are not arbitrary and that the Secretary of State’s decisions are guided by human rights standards.
46) Schedule 10, paragraph 5(2) is amended to require the Secretary of State to provide reasons for prohibiting the disclosure of international information, unless it is likely to prejudice the national security interests of the UK. It should also reflect the principles of necessity, reasonableness, proportionality and legitimate aim to ensure any restrictions are not arbitrary and that the Secretary of State’s decisions are guided by human rights standards.
47) Clause 21 provides for certain safeguards to ensure the appeals process for non-disclosure decisions are effective and accessible, for example that family members can chose their legal counsel from the panel handling the closed material.
48) Closed material procedure should be used with caution to ensure that it does not create obstacles to ensuring accountability and does not compromise a victim’s right to an effective remedy.
49) The time limit to appeal a non-disclosure of information, as set out in clause 21, is extended to three months.
50) Reasonable support and other assistance is provided to all family members within clause 22(5).
51) The publication of statements about support and guidance, as set out in clause 23(5), should be guided by human rights obligations, including keeping family members informed.
52) Close family members with respect to ongoing or pending investigations are specifically listed as ‘specified consultees’ under clause 37(7).
53) Clause 20 specifically states that the HIU will publically publish where it is reasonable to do so.
54) Detailed guidance is published that sets out how the HIU decides when to remove information from public reports on the grounds that it may cause distress to close family members. This guidance should be developed, implemented, monitored and reviewed in consultation with the Commission for Victims and Survivors and the victims sector. The Bill should also require that such guidance should also be considered before the HIU makes a decision on non-disclosure of information on the grounds of distress.
55) The Bill contains a requirement on the HIU to publish the annual figures for the number of times information was removed from public reports on the grounds that it may cause distress to close family members.
56) It is specifically stated in the draft Bill that all statements, reports and publications of the HIU are issued in an accessible manner and that reasonable accommodation is made for special requirements, where this is necessary.
57) It is specifically stated in the draft Bill that, where relevant, reasonable accommodation will be made to provide accessible family support and other assistance.
58) It is specifically stated within Schedules 15 and 16 that the monitoring mechanism and process operate in compliance with human rights.
59) It is expressly stated that the complaints and disciplinary mechanisms set out within clauses 14(1), 14(2), 31(1), Schedule 13 and Schedule 14, paragraphs 1 and 2 are independent and impartial.
60) Schedule 14 is amended to provide the HM Inspectorate of Constabulary and Fire and Rescue Services with the power to inspect the HIU.
61) Schedule 8 sets out requirements for how retained biometric material will be stored and efficient safeguards against misuse and abuse.
62) Schedule 8, paragraph 1(5) is amended to include reference to a “reasonable period of up to [specified number of] years” and “for the purposes of the HIU’s investigations”.
63) Schedule 8 clarifies what is permitted regarding the retention of biometric material if the HIU’s investigative functions extend beyond five years. This should reflect human rights standards, in line with the general principles set out in clause 1.
64) An effective and accessible mechanism is in place for individuals to be informed that their biometric material is held, how it is stored, how long it will be stored for and the monitoring body to be contacted to report misuse or abuse.
Independent Commission of Information Retrieval
65) Clause 42(5) is amended to provide for an extension to the timeframe for the ICIR in the event of non-completion of its functions.
66) Consideration is given to how the State will fulfil its human rights obligations in respect of information received that engages other ECHR rights, in particular Article 3, and which is outside the scope of deaths within the remit of the ICIR.
67) Further detail be provided in relation to the involvement of the Government of Ireland in the disclosure assessment and how any resulting conflict will be resolved.
68) The Bill be amended to require the ICIR to inform a family, in advance of receiving a report, that the Secretary of State intends to redact and on what grounds.
69) The draft Bill provides for an appeal mechanism to allow the decision to redact to be challenged by the family. Any mechanism similar to that under the HIU should consider the recommendations made by the Commission on closed material procedures in Section 3.0. Alternatively, recourse to a judicial review challenge should be possible.
70) The right to privacy is specifically considered in advance of the disclosure of information to a family, in addition to the considerations of national security and risk to life or safety.
71) Further clarity regarding information which may be provided to the ICIR, outside a death within its remit.
72) Clause 50(3) should be amended to remove the qualifications of for ‘close family’ and the residency requirement in order for the broadest access to the ICIR. Alternatively, clear policy direction should be provided to the ICIR in order that the process is as inclusive as possible.
Oral History Archive
73) The OHA is empowered to accept collective submissions from groups, organisations and communities to ensure full meaningful participation to all rights holders.
74) Clause 66 be amended so as to require any secondary legislation or rules to be enacted by way of affirmative resolution in the NI Assembly. Any such rules would also have to cover the situation where information is transferred into the archive from another source, to ensure that the appropriate consent is obtained.
75) Clause 55 is amended so as to include precise detail as to when an individual’s privacy can be overridden and relevant safeguards, such as the ability to challenge the decision. Alternatively, clause 55 could include a legislative requirement that this must be done by way of regulations or another mechanism.
76) The issue of how information, disclosing other human rights abuses or violations, can be effectively investigated is fully addressed in order that the State complies with its procedural obligations, in particular Article 3.
77) The Bill is amended to specify the nature and scope of any limitation on the release of information from the OHA.
Implementation and Reconciliation Group
78) The Bill is amended to include, in Part 5, a definition of sectarianism in order to assist the IRG in fulfilling its core task of promoting reconciliation and anti-sectarianism. Any definition should be in line with CERD and the Durban Declaration and Programme of Action.
79) The meaning of clause 60(3) clarifies the focused nature of the restriction on the IRG’s review and assessment role.
80) Access to information and materials should not be restricted to the publically available information listed in clauses 61(1) and 62(3), but that fully open access may be provided subject to further limitations that may be required by human rights law.
81) An insertion into Clause 62 in order to place an obligation on the Secretary of State for NI to lay a copy of the IRG report before Parliament.
82) welcomes the proposed amendments to the NI (Sentences) Act 1998 to extend the accelerated release scheme to those serving sentences for related offences committed on or after 1 January 1968 and before 8 August 1973, as set out in clause 64 and Schedule 18.
83) welcomes the confirmation within the consultation document that the proposed amendments will ensure anyone convicted of a Troubles-related offence committed between 1 January 1968 and 10 April 1998, including members of the security forces, will be eligible to apply to the accelerated release scheme, provided for by the NI (Sentences) Act 1998.
30 Aug 2018