The Report of the Consultative Group on the Past in Northern Ireland - Northern Ireland Affairs Committee Contents


3  The Legacy Commission

Mandate

24. The Consultative Group's core proposal was that a Legacy Commission be set up to deal with the legacy of the past by combining processes of reconciliation, justice and information recovery. The Group proposed that this be an independent statutory body with the overarching objective of promoting peace and stability in Northern Ireland. The mandate of the Legacy Commission would be to:

  • help society towards a shared and reconciled future, through a process of engagement with community issues arising from the conflict;
  • review and investigate historical cases;
  • conduct a process of information recovery; and
  • examine linked or thematic cases emerging from the conflict.

25. The Commission would, therefore, have three key sections: a Reconciliation Forum addressing societal needs; a Review and Investigation Unit continuing the work presently being undertaken by the PSNI's Historical Enquiry Team (HET) and the Office of the Police Ombudsman of Northern Ireland (OPONI); and a Truth Recovery and Thematic Investigation Unit offering further investigative options for families who are unlikely to be able to pursue prosecution through the courts, and also pursuing wider thematic enquiries emerging from the conflict. Each division would be headed by a separate Commissioner, one of whom would be an International Commissioner, who would also chair the Commission. We will discuss the detailed proposals for these separate aspects of the Legacy Commission later in this Report. Mr Denis Bradley told the Committee:

    What we are recommending we think is the most dignified and the most achievable methodology of getting to a place where after five years you can begin to bring down the shutters and say, "We have done our best," because you cannot undo the past. It is not undoable.[14]

26. The response to the proposed Legacy Commission has been somewhat mixed. Most witnesses acknowledged the integrity of the principles upon which the Consultative Group made the recommendations for the structure of the Commission; seeking to facilitate reconciliation through remembering and addressing societal needs relating to the Troubles, and attempting to help Northern Ireland move beyond the past, while retaining some possibility of justice. Nonetheless, serious concerns were expressed about the exact work that such a Commission would undertake. When asked his opinion about the most positive recommendations made by the Consultative Group, Sir Hugh Orde, then Chief Constable of the Police Service of Northern Ireland, told us:

    I think it was the structure, in the sense that it tried to bring […] everything into one place. I think that would have been a positive step forward. It also gave other opportunities to people that did not want the Historic Enquiry Team, which was the only show in town. We said at the beginning — in fact, when we started my expectation was that other things would kick in more quickly. In essence, it formalises a lot of the really good work — healing from remembering; truth recovery, story telling - all the things that we were told, but that were not joined up. I think its strength is its structure, and providing — and it is a big provision […] — we were satisfied that we could carry on unencumbered by any other administrative difficulty or financial difficulty, then it makes sense to put it all in one place.[15]

27. However, we received evidence from a number of witnesses who were concerned that the Legacy Commission as proposed by the Consultative Group would merely replicate much work undertaken by existing bodies in Northern Ireland. For example, the Northern Ireland Community Relations Council (NICRC) commented:

    The Council is not in principle opposed to a body that promotes societal reconciliation. However, we remain seriously concerned about the potential for overlap and duplication in the current proposal, not least with our own work.[16]

28. The Royal Ulster Constabulary George Cross (RUC GC) Foundation had a similar view:

    The report suggests many new structures to address the issues relating to the past. It is the contention of the RUC GC Foundation that at best this will lead to duplication or confusion of effort and at worst drive a further wedge between communities who are beginning to learn to live with each other in an unsteady peace. There are already many organisations and groupings working in the identified areas and it might be that the best way to progress matters is by providing additional resources to additional bodies.[17]

29. The Northern Ireland Retired Police Officers Association (NIRPOA) thought that further reflection might be necessary to determine exactly where a body such as the Legacy Commission would fit into existing bodies in Northern Ireland:

    I think before anything moves forward we need to have an appraisal of what actually is in place at this moment in time because the feeling coming out of Eames-Bradley is that there is yet another layer of bureaucracy put upon the work of organisations that are actually in place and have been doing good work. […] I think we need to stop and take a collective long breath and see what is working and fund those issues, and then if there are residual issues that the community at large feels it needs to be addressed then certainly look for softer mechanisms to try and tease out those issues.[18]

30. There is potential benefit to unifying the various strands of work already being undertaken in Northern Ireland to promote reconciliation under an umbrella organisation. There is also a significant risk that, particularly in the first few years, a great deal of time and money will be spent establishing an organisation to carry out roles which are already being fulfilled by existing bodies. A Legacy Commission would add real value only if it were qualified fully to take over the functions of bodies such as the Historical Enquiries Team and Police Ombudsman. It is not clear to us that it would greatly enhance the activities of bodies such as the Commission for Victims and Survivors in Northern Ireland, the Northern Ireland Community Relations Council or Healing Through Remembering, unless it were a replacement for, rather than a complement to, them. There is a danger that Northern Ireland could become overburdened with bodies addressing the Troubles. This would be unhelpful and likely to lead to confusion for the public, with work being replicated unnecessarily, representing an inefficient use of limited resources. We believe that it would be more helpful to give greater support to existing bodies to enable them to fulfil their roles as effectively as possible.

Implementation

31. It is clear from the reception of the report that society in Northern Ireland continues to be profoundly affected by the past. Serious issues deriving from the Troubles remain unresolved and must be addressed before reconciliation between communities can be achieved. Patricia MacBride, one of the four Commissioners for Victims and Survivors, observed that despite the hostile and emotional response that the publication of the report provoked, tensions between communities had not actually worsened as a result:

    I would have to say that I do not believe that the tensions have been increased, I do believe that they have become more apparent and more open. The tensions are there, they have been there, they will continue to be there. What we have within the Report of the Consultative Group on the past is perhaps not a prescription for how we address the legacy of the conflict, what we have is a series of recommendations that may take us some way down the road to doing this.[19]

32. The view that tensions already existed was echoed by NIRPOA, who believed that the report of the Consultative Group had "the potential for producing a focus for existing tensions" and emphasised that the report needed careful handling as a result.[20]

33. Even if the tensions observed following the publication of the report were pre-existing, there is a danger that pursuing activities which do not have cross-community support could give new focus to existing differences and, consequently, prove counterproductive. The RUC GC Foundation was concerned that the implementation of the recommendations of the report would do more harm than good at present:

    […] rather than having the "overarching objective of promoting peace and stability in Northern Ireland", much of the Report could lead to further division by opening up still raw wounds which have not had the time to heal with the potential to destabilise the embryonic political institutions.[21]

34. The Commission for Victims and Survivors believed an understanding had yet to be reached as to what reconciliation of communities in Northern Ireland might constitute in practice:

    For some people that may mean them individually becoming reconciled with the events of the past that have impacted upon them, for others it may mean a communal reconciliation between opposing political viewpoints, and for yet more it may mean society as a whole becoming reconciled to moving forward together in a new and inclusive future. The debate therefore about the substantive nature of reconciliation has to, we believe, form part of the debate on how we together move forward and deal with the past. Even if few of the recommendations are ultimately implemented, the publication of the Report of the Consultative Group on the Past has clearly stimulated debate about the how reconciliation is to be understood and achieved in Northern Ireland, and this is to be welcomed.[22]

35. It may be that an open, public discussion is the only way that consensus and understanding can be built with regard to some intensely difficult questions raised by the report. Healing Through Remembering noted:

    While the diverse membership of Healing Through Remembering naturally holds a variety of opinions on the individual recommendations in the Report, it feels that this Report offers an opportunity to genuinely engage on the difficult issues of the past.

    […] there is a need for a measured and reasonable debate on the recommendations and an attempt to be made to try to find a measured way of taking this issue forward. The experience of HTR is that honest inclusive debate in an appropriate environment can bring agreement on reconciliations, truth and justice by those who hold opposing views and opinions.[23]

36. While we accept the reasoning behind the recommendations of the Consultative Group regarding a Legacy Commission, we have serious concerns as to the practicality of such a Commission at this time. Such a Commission would have a driving role in creating the consensus by which Northern Ireland society might become united in moving on from the past, but the likelihood of success in that respect could be undermined from the beginning without sufficient cross-community desire to make such an idea work. To invest necessarily substantial sums of money in a Legacy Commission without full cross-community support would be premature and potentially counterproductive. There are simply too many issues relating to the way that the past is understood and dealt with in Northern Ireland for which no consensus yet exists, a reality encapsulated in the public response to the proposed Recognition Payment. We have already noted the danger of duplicating work already being undertaken, potentially at greater expense.

37. Given the absence of cross-community consensus regarding the nature, aims or work of such a body, we believe that the conditions of cross-community consensus required for the creation of the type of Legacy Commission proposed by the Consultative Group have not yet been achieved.

38. There is a danger that the desire to find consensus before acting could delay indefinitely the implementation of work that could in itself help build such consensus. The Church of Ireland commented:

    The Report, and reaction to it, has also demonstrated that there remain huge issues on which there is no consensus. If nothing else, this demonstrates the urgent need to make a start; the foolishness of ignoring difficulties; the importance of finding a way forward for the whole community. To do nothing may be more than reckless — it may be a backward step.[24]

39. We note that the Government completed its consultation on the Consultative Group's report in October 2009 and that the Commission for Victims and Survivors intends to undertake similar activities. These periods of consultation and discussion are necessary. Decisions must be taken, however, on the best way to address the past in Northern Ireland, and these decisions cannot be put off indefinitely. We recommend that the Government announces a time frame for any recommendations that it hopes to implement, following this period of consultation, and following detailed discussion with the parties represented in the Northern Ireland Assembly and, bearing in mind the imminent general election, with the Opposition at Westminster.

Period of mandate

40. The Consultative Group proposed that the Commission should have a statutory five-year mandate, with the Chairman of the Commission making a report on the progress that had been made in terms of helping Northern Ireland move towards a shared future and recommending any further steps that should to be taken to continue the healing process at the end of this period. It hoped that the end of this five years would signify "a significant transition from the past to the future".[25] The Group explained the importance of an end to such processes of dealing with the past being apparent:

    The Group has also taken account of the view, made clear during the consultation, that the past should not be allowed to continue to shape the futures in a way which is unhelpful and divisive. The process, which the group proposes is therefore time-limited in order to allow the past to be the past. Some will, no doubt, view the process as enabling them to get what they want, and for some that may be no more than acknowledgement, for others justice. Others will view the process as a way of "drawing a line under the past", and no more than that.[26]

41. Various witnesses expressed concern that five years would not be enough. The Northern Ireland Community Relations Council noted that some victims and survivors were only now coming forward to seek support and predicted that numbers would continue to grow over the next few years:

    While Council agrees with the need to have a vision and an end goal we are also of the view that this process will not be completed in a single planned moment. Instead the process of dealing with the past will require continuing attention as well as delicate and sensitive handling. We therefore believe that any institution or Commission should make recommendations on future work at the end of five years rather than drawing an arbitrary line underneath uncompleted work.[27]

42. Similarly, the Corrymeela Community believed that the Legacy Commission's mandate might need to be extended:

    It may be that five years is too short and that the mandate should be reviewed before the end of the five year to see whether it might be appropriate to continue for a further period.[28]

43. Lord Eames told the Committee that the choice of five years was in fact rather arbitrary. The most important point was that the process should be time-limited:

    We could have picked any figure. We chose five years for the simple reason that one of the things that came through virtually all the evidence that we had presented to us in the 18 months was that if we were not careful of setting some sort of time limit this would go on and on and on. I am obviously not wishing to defend just the figure five, but we had to choose a figure which would be realistic.[29]

44. We understand the underlying thinking behind the proposed five-year mandate. It is important that an end can be seen to the process of dealing with the past, in order to encourage a return to normality and allow society to begin to look forward rather than back. Dealing with the past is an on-going process, however, and it would be inappropriate to assume that the many complex issues that still need to be addressed in Northern Ireland would necessarily be dealt within a period of just five years. Some flexibility would be required.

45. The precise time frame required by a Legacy Commission could be determined within the context of the needs of Northern Ireland, only if and when cross-community consensus was found on its role and mandate. We believe it likely that any Commission would require a five-year mandate at the very least but support the idea of a time-limited mandate in order to prevent such a body from running indefinitely and prolonging the effects of the past by so doing.

International commissioner

46. The Consultative Group recommended that an international commissioner be appointed as Chairman of the Legacy Commission, with overall responsibility for supervising and directing its the work. The Group described this role as strategic, rather than operational, with specific functions in leading the attempt to tackle sectarianism and promoting reconciliation through the work of a Reconciliation Forum, of which the Chairman would be a key member. Two further commissioners would have specific responsibilities for Review and Investigation and for Information Recovery and Thematic Cases. All commissioners would be impartial, appointed jointly by the British and Irish Governments and approved by the Office of the First Minister and deputy First Minister.

47. The Secretary of State did not believe that appointing an international figure to head the Commission was necessarily the best approach:

    I would beg the question as to why it might need an international chair and two other commissioners — whether or not that might be the appropriate structure. I do understand why some members of the community in Northern Ireland would feel very strongly about an international chair, so that this would be somebody who would be regarded, as it were, as not in some way carrying baggage from the past in relation to any particular community and, therefore, might be seen as being able to be more fair. On the other hand, it has always been my view that the best person should get the job based on their ability, not on anything else. So I think that is another area where there should be a sensible discussion about the kind of person it should be. I am equally concerned, for example, about a structure which could be very top-heavy in terms of international commissioners and major commissioners but might be rather light on a really good chief executive who might take on this work.[30]

48. We suggest that the Commission might be more helpfully chaired by a local figure, as an active chief executive, rather than by a foreign figurehead. Northern Ireland is in a position where it is able to run its own institutions, such as the Assembly, on a cross-party basis, and that position is vital in the rebuilding of a sense of normality. While there may be political advantages in bringing an international figure to such a role, it would, at this point in Northern Ireland's progress towards lasting peace, be a much more positive move if any future Legacy Commission were chaired, or jointly chaired, by appointees from within Northern Ireland who could unite communities, with cross-community agreement and support.

Funding

49. The Consultative Group stated that the Legacy Commission represented "the most cost effective way to give proper consideration to outstanding historical issues".[31] The Group anticipated that setting up the Commission would cost in the region of £3 million and that the annual cost would be just over £33.5 million. The total cost of the Commission over a five-year mandate would, therefore, be in the region of £170 million.

50. The Consultative Group recommended the creation of a £100 million bursary for addressing society issues.[32] The report commented:

    What we will say is that even if nothing happens, this report never sees the light of day in legislation, there will be £100 million spent on HET and the Police Ombudsman's office dealing with the past and that is only the up-front part, that is not all the hidden cost. The second part is that if any other inquiry of any kind comes into the reckoning then the figures get blown out of the water. The other thing is that we have actually tasked the Irish Government with supporting this financially […] If they put in a certain amount of money then that reduces the amount. […] We know where it starts and we know where it ends in rough figures. No one knows how much all of this is going to cost if it continues to be fought through the policing system, the ombudsman system, the court system and the interchange between the British and the Irish Governments.[33]

51. The reality of devolution must be acknowledged: much of the money required for a Legacy Commission would fund activities in the already devolved areas of health and social care, and in the field of policing and justice, which we hope will be fully devolved in the very near future. Devolution should be seen to be progressing, and, therefore, seeking such additional funding from the UK Government looks like a step in the wrong direction. We believe that any significant additional funding should be voted by the Northern Ireland Assembly, rather than the UK Government. Decisions over funding levels and, by extension, the exact nature of any Legacy Commission would, therefore, be a matter of policy choice for the Northern Ireland Executive, rather than the UK Government. It is in the long-term interest of everyone involved that such decisions be taken by those who represent the people of Northern Ireland, and that the Executive be accountable for the financial consequences of such decisions.

Cooperation with the Irish Government

52. The Consultative Group recommended that the Irish Government help pay for and implement the proposed Legacy Commission, collaborating in the appointment of the Commissioners and cooperating with the procedures that the Group outlined for historical inquiries and information recovery processes. The report stated:

    The Group considers that, in light of the Irish Government's special interest in Northern Ireland and of the fact that the legacy of the past in Northern Ireland is of mutual concern to the Irish Government, that they should make an appropriate contribution towards costs.[34]

53. The Northern Ireland Human Rights Commission (NIHRC) has argued that the role of the Irish Government was "vague and contradictory" in relation to appointing Commissioners and the exact contribution that it would make towards costs.[35] This concern needs to be addressed. The Secretary of State told us that he had not engaged in formal discussions with the Irish Government as to their involvement in such a project, but hoped that the Irish Government would participate in the consultation process:

    […] on the back of this documentation that we are launching […]we would expect the Irish Government to play a full and active role in that consultation along with ourselves.[36]

54. We noted in our recent Report on Cross-Border Co-operation that relationships between Northern Ireland and the Republic of Ireland have improved significantly in recent years, particularly between the PSNI and An Garda Siochana. We hoped that improvements would continue to be made and that both sides would work towards "even greater" co-operation in the future.[37] We reiterate our previous sentiments regarding cross-border co-operation and note that, while we do not recommend that the Legacy Commission go ahead as proposed, there is scope for collaboration between the United Kingdom and the Republic of Ireland, both in terms of providing support for those affected by the Troubles on both sides of the border and the ongoing work of the Historical Enquiries Team. However, the exact role to be played by the Irish Government, and the legislative framework for such involvement, remain unclear in the report of the Consultative Group. Greater clarification is required as to the exact role of the Irish Government and any financial contribution it would make if any such Legacy Commission were to be pursued in the future.


14   Q 30 Back

15   Oral Evidence taken before the Committee on 15 July 2009, HC 745-i, Q 19 Back

16   Ev 48 Back

17   Ev 76  Back

18   Q 114 Back

19   Q 77 Back

20   Q 114 Back

21   Ev 76 Back

22   Oral Ev CVSNI Q61 Back

23   Ev 70 Back

24   Ev 71 Back

25   Report of the Consultative Group on the Past, January 2009, pp 140 -142 Back

26   Report of the Consultative Group on the Past, January 2009, p. 56 Back

27   Ev 48 Back

28   Ev 45 Back

29   Q 47 Back

30   Q 135 Back

31   Report of the Consultative Group on the Past, January 2009, p 131 Back

32   This estimate was challenged in evidence we received from the PSNI. See Chapter 5 for further details.  Back

33   Q 45 Back

34   Report of the Consultative Group on the Past, January 2009, p 137 Back

35   Northern Ireland Human Rights Commission Preliminary Position Paper: Report of the Consultative Group on the Past July 2009, para 84 Back

36   Q127 Back

37   Second Report of the northern Ireland Affairs Committee, Session 2008 - 09, Cross-border co-operation between the Governments of the United Kingdom and the Republic of Ireland, HC 78, p 6 Back


 
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