Addressing the Legacy of Northern Ireland’s Past: the Government’s New Proposals (Interim Report) Contents

2Stormont House Agreement

7.The Stormont House Agreement (the Agreement) was agreed and published in December 2014 following weeks of talks between the UK and Irish Governments and political parties in Northern Ireland.9 It covered a range of issues and included a framework for dealing with the legacy of the Troubles in Northern Ireland. The Agreement followed previous attempts to design a new system to deal with the past, including the 2009 Eames-Bradley report and the Haass-O’Sullivan talks in 2013. The Stormont House Agreement set out six general principles:

The Agreement proposed four new institutions to take forward responsibility for legacy:

8.The new institutions had not been established when the Executive collapsed in January 2017. The Northern Ireland Office (NIO) held a public consultation from May to October 2018 on how to implement the legacy proposals in the Agreement. The consultation received more than 17,000 responses, with the NIO publishing its analysis in July 2019.12 Alongside the consultation paper, the Government also published a draft Bill.13

9.Our predecessor Committee in the previous Parliament held an inquiry examining the draft Bill, but that inquiry was curtailed by the general election in December 2019 before a Report could be published.14 A range of views was expressed in response to that inquiry. Concerns were raised about the role and powers of the bodies in the Bill, particularly the HIU. Key disagreements included the extent of the investigatory powers of the HIU, the inclusion of cases of “non-criminal police misconduct” in the HIU’s remit and the ICIR’s ability to verify information.15 Submissions to our 2020 inquiry similarly included a range of views on the Stormont House Agreement and the draft Bill. Some believed that the Stormont House Agreement proposals still provided the best way forward.16 However, other witnesses welcomed the change in direction.17 In the WMS, the Secretary of State for Northern Ireland stated that the Agreement was “an important milestone, but it did not stop the debate continuing”.18

Current legacy arrangements

10.Responsibility for legacy investigations in Northern Ireland is currently held by separate bodies. Investigations into Troubles-related deaths are carried out by the Legacy Investigations Branch (LIB) of the Police Service of Northern Ireland, which replaced the previous Historical Enquiries Team (HET) in 2015 and took over its entire remaining caseload relating to nearly 1,200 deaths.19 Historical allegations of police criminality and misconduct are handled by the Historical Investigations Directorate (HID) of the Office of the Police Ombudsman for Northern Ireland (PONI), and inquests are carried out by the Coroners Service for Northern Ireland. Separate investigations into specific cases are being carried out under Operation Kenova (see Chapter 7).

11.The current arrangements for investigating the past were challenged by, among others, Lord Caine, who served as a lead Government negotiator on the Stormont House Agreement. He told the Committee that one of the problems with the system was that the mechanisms had “grown up ad-hoc” and were “disjointed”.20 The Commission for Victims and Survivors stated:

It has been almost universally accepted that the current system is not able to address the legacy of our past; therefore, it is necessary to introduce new mechanisms that would deliver better outcomes for victims and survivors.21

A change in policy?

12.The Government confirmed its continuing commitment to implementing the Stormont House Agreement in the Queen’s Speech in December 2019:

To deal with NI legacy issues we will seek the prompt implementation of the Stormont House Agreement in order to provide both reconciliation for victims and greater certainty for military veterans … In parallel with the Stormont House Agreement institutions we will tackle the inappropriate application of the Human Rights Act to issues that occurred before it came into force.22

This commitment to seek the “prompt” implementation of the Stormont House institutions was reaffirmed in New Decade, New Approach (NDNA) in January 2020. As part of NDNA, the Government committed to publishing and introducing legislation within 100 days.23

13.In the WMS, the Secretary of State for Northern Ireland outlined a new framework to address legacy issues in Northern Ireland, including “significant changes” from the Stormont House Agreement.24 Referring to the NIO’s 2018 public consultation on the draft Bill, he stated:

We have carefully considered each and every one of these [consultation responses], and sought to identify a way forward that will deliver for all those affected by the legacy of the Troubles and enable all sides of the community to reconcile and prosper. It is clear that, while the principles underpinning the draft Bill as consulted on in 2018 remain, significant changes will be needed to obtain a broad consensus for the implementation of any legislation.25

Key changes laid out in the WMS included the move to a single, independent body to oversee the new legacy arrangements. The body would be responsible for carrying out both investigations and information recovery, as opposed to the separate HIU and ICIR institutions described in the Stormont House Agreement. A greater emphasis would also be placed on information gathering for families. Cases that do not meet the threshold for a full police investigation would be closed permanently under the new plans, with a legal bar on future investigations.26 The Government’s new proposals are discussed in greater detail in Chapter 4.

14.The WMS asserted that the proposals had “evolved to remain true to the principles of the Stormont House Agreement”.27 Some submissions to our inquiry challenged that assertion. The Northern Ireland Human Rights Commission described the proposals as a “radical departure” from the Stormont House Agreement.28 The Model Bill Team expressed the view that the new proposals represented a “unilateral abandonment” of the Agreement.29 WAVE Trauma Centre, a voluntary organisation offering care and support to people affected by the Troubles, told us that it believed the proposals were not consistent with the principles outlined in the Stormont House Agreement.30

15.The Committee welcome the Government’s desire to legislate to address the legacy of the past in Northern Ireland. Our predecessor Committee’s inquiry in the previous Parliament identified flaws in the draft Bill which would have prevented its receiving broad support in Northern Ireland. However, the new proposals represent a unilateral and unhelpful departure from the Stormont House Agreement rather than positive and progressive evolution. The Government must, as soon as possible, introduce legislation that is consistent with the six principles of the Stormont House Agreement:

Irish Government responsibilities

16.The Stormont House Agreement referred to co-operation between the UK and Irish authorities on unresolved legacy cases:

The UK and Irish Governments recognise that there are outstanding investigations and allegations into Troubles-related incidents, including a number of cross-border incidents. They commit to co-operation with all bodies involved to enable their effective operation, recognising their distinctive functions, and to bring forward legislation where necessary.31

However, the WMS did not refer to the appropriate role and responsibilities of the Irish Government in relation to the new legacy body. As there is uncertainty, we invite the UK Government to address this issue specifically in its response to this Interim Report.

17.Witnesses noted that certain cases will require the co-operation of and a “proactive” approach from the Irish Government, including cases involving cross-border criminality.32 Kenny Donaldson, Director of Services, South East Fermanagh Foundation victims and survivors group, said:

The southern state, in many ways, has adopted a position over the years where it has almost suggested that it was an independent onlooker to events that were unfolding within Northern Ireland.33

He added that if the Republic of Ireland were not to engage with the legacy structures, “those we represent are going to continue to be treated in an unfair and unjust manner”.34 Advocacy Support Manager Ken Funston concluded that the organisation had found it “nigh on impossible to get anything” from the Irish authorities on legacy cases.35 The then Victims Commissioner Judith Thompson highlighted the role of the Irish Government in dealing with legacy cases:

they [the Irish Government] are engaged not only as parties in the Stormont House Agreement and as signatories regarding information retrieval, but also as a Government who hold information and evidence that are of great significance and importance to many people awaiting investigations, both in the Republic of Ireland and in the north of Ireland. I put it to the Irish Government not only that their partnership was involved in solving this, but that their action as party to this exercise and as a party that holds legal evidence is also critical. They face many of the same challenges as the UK Government do.36

18.The Irish Government will have a role to play in parts of a new legacy process. It will need to maintain a collaborative approach to help resolve legacy cases, which we heard has not always been the case in the past. That will best be achieved by the UK Government adopting a policy of meaningful and appropriate engagement with the Irish Government as envisaged in the Stormont House Agreement.

Overseas Operations (Service Personnel and Veterans) Bill

19.The WMS was published alongside the Overseas Operations (Service Personnel and Veterans) Bill.37 The Bill addresses legal proceedings against Army personnel in relation to military operations served overseas, including a presumption against prosecution for allegations dating back more than five years. The Government has made it clear that the Bill does not apply to events in Northern Ireland, and we welcome this clarification.38 The Government included an assurance to legislate against “vexatious legal claims that undermine our Armed Forces” in its 2019 election manifesto, without ever defining the term vexatious.39 The Secretary of State for Northern Ireland has also promised to deliver “equal treatment of Northern Ireland veterans and those who served overseas” in the WMS.40 Judith Thompson argued that operations in Northern Ireland should be treated differently from overseas operations:

Do not conflate what happened to UK citizens on UK soil in a situation that the Government were very clear was not a war with what happened overseas in other theatres and other places.41

20.The Government is right to recognise the unique circumstances in Northern Ireland by decoupling Northern Ireland legacy issues from the Overseas Operations (Service Personnel and Veterans) Bill. Any attempts to conflate the two must be resisted.

11 Paragraphs 21–55, Stormont House Agreement

14 Terms of Reference, Consultation on Stormont House Agreement inquiry, Northern Ireland Affairs Committee (2017–19)

15 For example, see Ulster Human Rights Watch (SHA0015), Northern Ireland Retired Police Officers Association (SHA0035)

16 For example, see: Stormont House Model Bill Team (LEG0027); Pat Finucane Centre and Justice for the Forgotten (LEG0028)

17 For example, see: Ulster Human Rights Watch (LEG0013), South East Fermanagh Foundation and Innocent Victims United (LEG0016), Neil Faris and Peter Smith CBE QC (LEG0014)

18 Addressing Northern Ireland Legacy Issues, Written statement by Brandon Lewis MP, 18 March 2020, HCWS168

21 Commission for Victims and Survivors Northern Ireland (LEG0010) para 38

23 Paragraph 16, Annex A, New Decade New Approach agreement

24 Addressing Northern Ireland Legacy Issues, Written statement by Brandon Lewis MP, 18 March 2020, HCWS168

25 Addressing Northern Ireland Legacy Issues, Written statement by Brandon Lewis MP, 18 March 2020, HCWS168

26 Addressing Northern Ireland Legacy Issues, Written statement by Brandon Lewis MP, 18 March 2020, HCWS168, “UK Government sets out way forward on the legacy of the past in Northern Ireland”, Northern Ireland Office press release, 18 March 2020.

27 Addressing Northern Ireland Legacy Issues, Written statement by Brandon Lewis MP, 18 March 2020, HCWS168

28 Northern Ireland Human Rights Commission (LEG0034) para 4.5

29 Stormont House Agreement Model Bill Team (LEG0027), paras 1 and 5

30 WAVE Trauma Centre (LEG0024), para 12

32 Q132 [Northern Ireland Retired Police Association]

36 Q7

37 The WMS stated that “today the Government announced the introduction of legislation to provide greater certainty for service personnel and veterans who serve in armed conflicts overseas. Alongside this, we are setting out how we propose to address the legacy of the past in Northern Ireland”. Explanatory notes describe the Overseas Operations (Service Personnel and Veterans) Bill as representing “one strand of the Government’s approach to addressing the problem of “Lawfare” (the judicialisation of armed conflict) and to ending the cycle of reinvestigation of historic events. The Government is intending to introduce separate legislation covering operations in Northern Ireland”. Explanatory notes to the Overseas Operations (Service Personnel and Veterans) Bill [Bill 117 (2019–21)-EN)

40 Addressing Northern Ireland Legacy Issues, Written statement by Brandon Lewis MP, 18 March 2020, HCWS168

41 Q52. See also Professor Brice Dickson (LEG0008), para 10

Published: 26 October 2020