We thank the committee for the opportunity to provide information on the experience of our families in respect of legacy issues. The interest and assistance of State institutions in this jurisdiction have always been welcome. The promise of the Good Friday Agreement was explicitly based on the notion that nationalists would never again be left at the mercy of a one-party state and that, as much as the British Government is incapable of acting with neutrality in its policy approach to the North, the Irish Government should also balance the British approach and seek to guarantee the interests of nationalists. Our clients have often felt abandoned in the past decade as British and unionist campaigns oppose truth and justice in respect of the actions of soldiers, police and their informants and agents during the conflict. If nothing else comes of this engagement, continuing interest in and monitoring of the actions of the British Government in relation to legacy issues will be an important indication that the rights of victims of British and unionist official and unofficial forces will not be ignored.
Relatives for Justice, RfJ, was established in 1991 by relatives and supporters of people killed by British soldiers or members of the RUC, and by loyalist paramilitary organisations in circumstances where collusion with state forces is suspected. RfJ aims to provide appropriate therapeutic and developmentally based support for the bereaved and injured of the conflict within a safe environment. It also seeks to examine and develop transitional justice and truth recovery mechanisms to assist with individual healing, contribute to positive societal change, and ensure the effective promotion and protection of human rights, social justice and reconciliation in the context of an emerging participative democracy post conflict.
RfJ was instrumental in the development of the ideas and the identification of cases to put before the European Commission and European Court of Human Rights in the 1990s. The landmark ruling in 2001, known as McKerr and Others v. UK, around Article 2, the right to life, is arguably the key that has delivered an inescapable obligation on the British Government to deal with the legacy of its actions and those of its agents during the conflict. While we welcome the effort to provide a measure of resolution in all deaths and injuries, it has been the actions of the British state that have received least coverage, and it is the investigations into the actions of that state that continue to be most vigorously protected by those, in the police, in veterans’ associations, in intelligence agencies and in political parties, who should know better.
RfJ has been supportive of the general intentions and aspirations that led to the Stormont House Agreement. In particular, the fact that this agreement had the support of all the political parties in the North of Ireland and the two Governments gave it a legitimacy that earlier attempts to unravel legacy issues had not. The allocation of a decent budget of €170 million was a further indication of an apparent political will, finally, to get the job done.
The architecture in the Stormont House Agreement approximates more or less to that envisaged in the earlier Eames-Bradley report and the Haass-O’Sullivan exercise. The general shape of what needs to be done is, therefore, unproblematic. The question will all be in the implementation. To the extent that there have been discussions on likely parameters, RfJ’s monitoring has suggested general satisfaction. However, more recently, prevarication on behalf of the British authorities has been the order of the day. In particular, the British Government’s endless repetition of a couple of the principles mentioned in the Stormont House Agreement is both instructive and indicative of its approach. There are six principles intended to underpin the whole agreement, yet whenever the Secretary of State for Northern Ireland, James Brokenshire MP, or his predecessor, Theresa Villiers MP, speaks or spoke of legacy matters, they have emphasised principle six, that legacy should be “balanced, proportionate, transparent, fair and equitable”. By this they mean that there is too much focus on what the state did during the conflict. However, another principle calls for the Stormont House Agreement mechanisms to operate in a “human rights compliant” manner. Yet another says that the Stormont House Agreement should “uphold the rule of law”. Neither of these principles can operate in a way that directs equal scrutiny in terms of outcomes. In the alternative, it is a fact that the RUC and criminal justice system operated during the conflict in a manner designed to protect the state and its agents, which means that there will be added focus on their activities in investigations that are, for the first time, independent, thorough and impartial, as required by Article 2 case law.
These British Government intentions underpin our suspicions about the stated aim of the Secretary of State for Northern Ireland, James Brokenshire, to hold a public consultation on plans for the Stormont House Agreement implementation. The agreement is now three years old. All parties signed up to it along with the two Governments. The consultation is designed to allow for the agreed elements of the Stormont House Agreement to be undermined in legislation or by way of implementation. For the first time, the list of consultees includes British organisations and formations which have only recently become vocal as a handful of former soldiers have begun to face questioning and prosecution. This is a bit like consulting British Parachute Regiment veterans in advance of the establishment of the Bloody Sunday inquiry.
The other indicator of British Government bad faith is its reliance on a national security veto which it wishes to enshrine in the legislation setting up the Stormont House Agreement institutions. This would allow the Secretary of State to block reports from the historical investigations unit and the Independent Commission on Information Recovery on grounds of national security. The two bodies have always been envisaged as independent. Impinging on their right to publish what they see fit to publish is a serious breach of such independence.
At a meeting in February 2016 at which the Pat Finucane Centre was present as well, the former Secretary of State for Northern Ireland, Theresa Villiers, assured an RfJ delegation that there was no need to worry about such matters as national security as a veto would only be used in a handful of cases. The evidence I will now outline suggests otherwise.
Over the past decade, the whole state apparatus of intelligence, legacy policing, public records and information management has been busily erecting a scaffold of policy and practice designed to prevent the leakage of the most basic information into legacy reports. Redactions are now applied over huge amounts of basic information that would in the past have been readily available in any public records. Requests from public bodies for inquest records or court transcripts, both of which are of course held in public, are now routinely taking three years or more to access. When we do finally get them, there are often whole pages blocked out.
In response to the Article 2 requirements around providing information to relatives and providing so-called equality of arms in order that families have more equal representation by way of solicitors and barristers in properly powerful fact-finding inquests, the allies of the RUC special branch have put in place a schema of redaction that makes a mockery of any suggestion of transparency. Non-sensitive disclosure takes years while disclosure of sensitive information is subject to enormous delay, even when such material is the subject of court orders.
All these arrangements are intended to frustrate attempts to uncover the truth of what the British state was up to during the conflict. Levels of collusion have been admitted in report after report that would have been dismissed as propaganda in years gone by. Despite this, the PSNI, holders of public records, the Northern Ireland Office and the intelligence services persist in their efforts to protect their agents from prosecutions when appropriate and disclosure when required.
In the absence of the Stormont House Agreement bodies, relatives have only the current mechanisms as a way of seeking information and closure, namely, the Police Ombudsman and legacy inquests. Both of these have been progressively starved of resources, as Ms Cadwallader has outlined in respect of the Police Ombudsman. The ombudsman has faced year-on-year budget reductions while legacy inquests have had an agreed £45 million budget blocked by Ms Arlene Foster MLA when devolution was in operation and now by James Brokenshire in the face of the Lord Chief Justice's urgent requests. Both mechanisms have been accepted by the Council of Europe as meeting the required criteria of independence and thoroughness to be Article 2 compliant. The shredding of resources is simply the most recent means of undermining European case law and judgements.
The outcome of all these problems is becoming increasingly evident. Judicial frustration is emerging in case after case, and Ms Cadwallader has already mentioned the one relating to Glenanne. In civil cases such as Flynn
and Monaghan, where police handlers have been shown to subvert the law and protect agents who have committed murder and attempted murder, the PSNI prevaricates and delays in carrying out court orders on disclosure.
In cases of massive collusion, such as the Barnard, or the Glenanne, case, the PSNI has been shamed by the judiciary for refusing to allow independent thematic reports. In cases that the state is breaching Article 2, in failing to provide proper investigations, such as the Hughes, or the Loughgall, case and a couple of other cases I mentioned, the judges are ruling in favour of the applicants. In our view, the judiciary are sending the message that the rule of law is being undermined by the approach of the PSNI and Crown lawyers to disclosure and in wider legacy matters.
However, the approach by the police and intelligence agencies is also undermining the new policing dispensation. Every time the police refuse to hand over material, our families and the public more generally suspect that they have something to hide. That something was under the old dispensation of the RUC. However, if the new police service continues to hide material, it gathers up the reputation of the old discredited institutions and place it on their backs. The Chief Constable, George Hamilton, claims he wishes to hand over legacy matters and concentrate on policing the present. He, however, and his deputy Drew Harris, were RUC officers. By their actions, they are protecting the legacy of the RUC and thereby undermining both the reputation and the potential legacy of the PSNI.
A final outcome of this unsatisfactory situation is that legacy controversies retraumatise families who are seeking justice and truth. Powerful forces and institutions have implemented the same strategic approach of embargoing access to the truth in response to domestic judicial court rulings and orders much in the same way that they have with international scrutiny. Overall, the approach equates to a continuing form of impunity for its agents and their actions during the conflict. As mentioned, Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, when he visited Belfast in November 2014, described it as a continuing form of impunity. This impacts significantly on those bereaved and injured, adding additional psychological harms to their trauma. The result is, at best, daily anxiety, stress, poor mental health, and actual physical illness. Indeed, many of the bereaved have died prematurely of illnesses and poor health that their families attribute directly to the de facto impunity and denial of a proper investigative process that holds to account those responsible for egregious violations.
It is now 16 years since the initial European Court ruling that gives effect to current obligation under European human rights law to investigate state-caused deaths. The refusal by the UK to provide victims with a remedy by way of implementing Article 2 compliant investigations is now systemic. It is for these reasons that RfJ appeals to the committee to consider urgent appeals to the British Government, the NIO and the Chief Constable of the PSNI to expedite the implementation of the Stormont House Agreement and co-operation with existing legacy mechanisms in disclosure and other matters. Otherwise, the UK will continue this perpetual cycle of delaying and denying the bereaved, and injured, their rights thus exacerbating the additional transgenerational harms already referred to. I thank the committee.
