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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