British Irish Rights Watch

dealing with the past:

response to the report by the consultative group on the past

1.1 British Irish RIGHTS WATCH (BIRW) is an independent non-governmental organisation that has been monitoring the human rights dimension of the conflict, and the peace process, in Northern Ireland since 1990. Our vision is of a Northern Ireland in which respect for human rights is integral to all its institutions and experienced by all who live there. Our mission is to secure respect for human rights in Northern Ireland and to disseminate the human rights lessons learned from the Northern Ireland conflict in order to promote peace, reconciliation and the prevention of conflict. BIRW’s services are available, free of charge, to anyone whose human rights have been violated because of the conflict, regardless of religious, political or community affiliations. BIRW takes no position on the eventual constitutional outcome of the conflict.

1.2 When the Consultative Group on the Past (CGP) was established by the Northern Ireland Office, BIRW had a number of concerns. We felt that, as a creature of the NIO, it was not independent. There had been no consultation about whether to establish the group, who its members should be, or it terms of reference, which were very general. It was also given just one year to complete its work (a timetable which it overran). We feared that it was a government-inspired exercise in sweeping the past under the carpet.

1.3 Both the CGP and the NIO were taken aback by the overwhelming public response to the project. It has become clear that the members of the CGP have tacled their very difficult task with the utmost seriousness. Several of them have found it a life-changing experience. They have approached their work with honesty and courage, and are to be commended for it.

1.4 However, it also became clear that whatever the CGP proposed was going to replace the PSNI’s Historical Enquiries Team (HET) and that part of the Police Ombudsman’s (PONI) work that deals with the past. BIRW has always said that this would only be acceptable if the replacement provided a truth recovery process at least as good as that provided by the HET and PONI; was in conformity with domestic and international human rights standards, in particular Article 2 of the European Convention ion Human Rights (ECHR), which protects the right to life; and was properly resourced.

1.5 Although there is much in the CGP’s report which is to be welcomed, there are also some very serious concerns. While we do not believe that the CGP has consciously set out to sweep the past under the carpet, the model they have come up with is lacking in transparency, with too much happening behind closed doors. In particular, we are concerned that the CPG is proposing an end to public inquiries in Northern Ireland, and that it is of the view that its proposals can deal adequately with the case of Patrick Finucane – a suggestion which is already being embraced by the government.

1.6 We are also concerned that the CPG model may not be Article 2- compliant, and may not improve on the investigations currently on offer from PONI and, especially, the HET. If so, then there is a danger that those who lost loved ones in the conflict may become divided into two camps: those who received a HET investigation and those who did not. Although the HET itself is not Article 2-compliant, because it is not independent of the PSNI, if the CPG’s proposed Legacy Commission delivers less than the HET, then the delivery of justice to the bereaved will become a chronological lottery. Any such outcome would be grossly unfair and discriminatory, and must be avoided at all costs.

1.7 The report also raises very serious concerns in relation to impunity, particularly where agents of the state are concerned.

1.8 The CPG proposes a five-year window for dealing with the past, after which it will be fairly firmly closed. In our view, it will take Northern Ireland much longer than five years to come to terms with its past, and the CGP’s model is too close to drawing a line in the sand, simply deferring that moment until 2015.

1.9 These and other concerns are explored in more detail in the rest of this response. The following system has been adopted to cross-refer to the report: [chapter:page(s)].

2.1 The greatest potential impediment to these proposals ever seeing the light of day lies in the immediate response of the UK government. Firstly, in this time of economic recession, a large amount of money is being sought, and these proposals are not worth doing on the cheap. Secondly, the leaking of the proposal for a £12,000 recognition payment to the families of those who died in the conflict has led to a backlash and knee-jerk, out-of-hand rejection of all the CPG’s the proposals on the part of many people, most, but not all, of them unionists. Thirdly, even the CGP does not envisage its proposals being implemented until late 2010 [9:159], by which time their may have been a change of government in the United Kingdom and previous commitments may not be honoured.

2.1 It is therefore crucial that the UK immediately announces a short, sharp consultation period, say three months, on the proposals (so as not to delay implementation and because implementation is likely to be more a matter of political will than anything said in reply to the consultation); followed by a swift pronouncement on the future of the proposals; and that an Implementation Group is set up immediately to lay the foundations in preparation for legislation, as the CGP has recommended [9:159]. Consideration should also be given to the appointment of at least shadow Legacy Commissioners.

2.2 The CGP have rightly identified that both the Irish government and the OFMDFM[1] have a stake in these proposals [8:137], and it is to be hoped that they will play constructive roles, although it is difficult not to harbour doubts in relation to OFMDFM, given the stance of the First Minister, who has rejected the report in its entirety, and the lukewarm reaction of Sinn Féin, the political party of the Deputy First Minster.

“The past should be dealt with in a manner which enables society to become more defined by its desire for true and lasting reconciliation rather than by division and mistrust, seeking to promote a shared and reconciled future for all.” [2.49]

particularly the inclusion of human rights compliance and their acceptance that dealing with the past is a process and not an event.

3.2 We also agree that it is not what happened in the past but the interpretation that is put on those events that matters if the past is to be put into perspective and reconciliation is to occur [2:53]. However, in reality, there comes a point in time when a consensus is reached about what happened in the past. This too is open to interpretation, and does not always achieve a correct analysis. As the CGP rightly observes,

“Buried memories fester in the unconscious minds of communities in conflict, only to emerge later in even more distorted and virulent forms to poison minds and relationships.” [2:52]

It is important, therefore, to recognise that moving away from irreconcilable narratives towards an agreed understanding of the past is also a process, which needs leadership and good management if it is not to entrench divisions. In our opinion, this amounts to more than a simple recognition that wrong was done on all sides [2:54] and that all sides have some claim to morality [2:55]. That is an important first step, but that is all that it is. While it may not be the task of the proposed Legacy Commission, an honest attempt to deal with the past has to recognise that one day history will be written and history will judge. Some awareness of that inevitable outcome needs to lie at the heart of any process for dealing with the past. We therefore hope that the Legacy Commission will help those who want to put the past behind them to adopt processes which will allow history to judge them kindly, at least in terms of the way they dealt with the past, whatever their former activities or omissions may have been.

4.1 Despite the inclusion of human rights compliance in the working principles, there is very little reference to human rights themselves in the report, nor the role of human rights NGOs, who have done a great deal to keep the flames of truth and reconciliation alight during very difficult times. This is a significant omission, because the conflict was fuelled by lack of respect for human rights and repressive measures taken in the name of combating terrorism which together created a human rights deficit in Northern Ireland which remains to be fully addressed. It also impedes the potential for learning the lessons of Northern Ireland for other conflicts and for counter-terrorism generally.

4.2 Similarly, there is very little mention of the roles played by the British, Irish and American governments in both the conflict and the peace process. The otherwise very useful summary of different views of the conflict [3:62 – 65] is the poorer for the omission of all these perspectives.

4.3 Although the CGP has recognised the Irish government as a stakeholder, the report is vague on the issue of cross-border attacks. It would appear that the Legacy Commission’s remit is to stop at the border, although it will require co-operation from Ireland in order to carry out some of its functions. More joined-up thinking is required on this issue. If the experience of the HET is anything to go by, investigations of such incidents seem to reach the border from both sides and then fail to meet up.

If dealing with the past is a process, then it is not a process that can come to an abrupt end after a five-year period. Support for survivors could require lifetime input. In our view, the CGP has neither allowed enough time for the process it proposes, nor given sufficient thought to what happens when its proposed Legacy Commission comes to an end in 2015.

6.1 BIRW strongly support the CGP’s rejection of the politicisation of victimhood and the notion of a politically-defined or sectarian hierarchy of victims which concentrates on the identity of perpetrators and/or victims rather than the severity of the victim’s loss [3:68]. We also concur with the CGP’s adoption of the definition of victims and survivors as set out in the Victims & Survivors (Northern Ireland) Order 2006 [3:67].

6.2 Leaving aside the question of whether it was wise to recommend an ex-gratia recognition payment, and the demonstrable lack of wisdom in leaking that proposal, now that the issue has been aired it must be considered [4:90 – 94].

6.3 First, if such payments are to be made, then it is important that they are not characterised as compensation, but seen for what they are in fact, which is a token of recognition. It is also important that it is recognised that these payments are made not to the victims, who are all dead, but to their families, and that, if there is no hierarchy of victimhood, still less can there be a hierarchy of bereavement.

6.4 Secondly, it is important that take-up of such payments should be optional, in order to accommodate the strong feelings on all sides of some of the bereaved that such payments are inappropriate. For some, though, a half-way house might be appropriate, in that they may wish to nominate a registered charity to whom the payment could be made on their behalf.

6.5 Thirdly, it is a matter of some concern that cohabitees and fiancé(e)s do not appear in the list of those who can receive payments [4:93].

6.6 Fourthly, there is clearly a need for flexibility in relation to eligibility, as recommended by the CGP [4.93], as, for example, in the case of those who died of a heart attack that was clearly related to the news of the conflict-related death of a loved one.

6.7 Fifthly, whilst it would require some judgements to be made about eligibility and it would cost more, it does seem difficult to justify making these payments to the bereaved while excluding the seriously injured, some of whom would benefit greatly from an injection of cash.

6.8 Lastly, for all the clamour of those who do not want to receive such a payment, and their readiness to deprive others of money, an expectation has been created now that the payments will be made and there are many amongst the bereaved to whom £12,000 would make a modest but tangible contribution to their standard of living.

7.1 The CGP are quite right when they say that victims and survivors have not received the support they need and deserve [4 generally]. They are also right when they say that not all victims and survivors’ groups represent all the victims and survivors in any given category, and that many victims and survivors are left without a voice [4:87].

7.2 We also agree that aftercare for members of the security forces [4:85] and prison officers [4:86] leaves a lot to be desired, and that more needs to be done for all those suffering from post traumatic stress disorder [4:88], as well as those who are indirect victims of the conflict [4:87].

7.3 It is also true that the social security benefits system often fails to meet the needs of victims and survivors [4:87]. It must be recognised that post traumatic stress can render some people unable to work. Other victims have lost their jobs because of the strong need they have felt to devote their time to seeking justice for their loved ones. Such people should not be penalised but supported. An urgent review of the benefit system is required to ensure that it deals appropriately and sensitively with victims’ and survivors’ needs, especially in relation to post traumatic stress.

7.4 As the CGP has recognised, the conflict has had serious socio-economic consequences, creating wide regional differentials which need to be addressed and redressed [3:79 – 80] through a wide range of measures, of which the review of the benefits system is just one example.

7.5 The CGP is also correct to highlight the fact that all communities have been victimised as communities, both internally and externally [3:71]. However, their proposed remedy for this problem – that the Commission for Victims and Survivors should address it by encouraging the telling and hearing of stories – seems very weak. Much more is needed if, for instance, the stranglehold of the paramilitary godfathers on some communities, both loyalist and republican, is to be eradicated.

8.1 There is much implicit criticism in the CGP’s report of the Commission for Victims and Survivors (CVS), which our own experience of their work reflects. It is important that the CVS puts aside the politicisation that has dogged their institution and become vociferous champions for all victims and survivors. I therefore agree with the CGP that the CVS should be supported, free from political pressure [4:89], and with some of the CGP’s proposals, such as that the CVS should provide more support for carers and for former security force personnel [4:90].

8.2 It is obvious, though, that a debate has been had about whether the Legacy Commission should subsume the role of the CVS, along with those of the HET and PONI. The CVS has clearly won this argument, which it probably should, as, once the Legacy Commission disappears, the CVS will presumably be the main port of call for victims and survivors. However, the CGP appears to have some difficulty in deciding what role the CVS should play in dealing with the past (surely the CVS’ home territory?) generally and in relation to the Legacy Commission in particular.

8.3 The most important role that the CGP has identified for the CVS is convening the Reconciliation Forum [8:139 -140], although the CGP seems to have some doubts as to the CVS’ willingness or capacity to do this. The Forum will, it seems, perform a useful oversight function in relation to the Legacy Commission, as well as providing a channel for feedback to them. However, the Forum could also provide similar useful functions in relation to the CVS itself, but this is not proposed.

8.4 The CGP also says that the CVS must go beyond victims and survivors in facilitating story-telling and -hearing, and taking a lead in relation to remembrance [5:105]. This seems to suggest an extension of the CVS’ remit, although there is a point of view which says that everyone affected by the conflict is a victim and/or survivor, to some extent.

8.5 Another role envisaged for the CVS by the CGP is taking the lead in a repatriation scheme for those exiled because of the conflict [3:81]. Such a role would require very close liaison with the police, as many returning exiles have in fact been killed or otherwise harmed, especially those who have been outed as informers. The CVS would need to move a very long way from its currently politicised image and would have to improve its service considerably before it could perform such a delicate function effectively.

9.1 The CGP is correct in highlighting the very high cost the conflict has created in terms of societal (annoyingly referred to as “society” throughout the report) needs for healthcare and other services, and societal scourges such as sectarianism. Their proposal for a considerable bursary to tackle these problems is welcome [8:143]. However, it is disappointing that there is no recognition that truth recovery also creates many unmet costs. NGOs have put massive resources into assisting the HET and PONI, without any extra funding despite a significant increase in workload, and we anticipate that the Legacy Commission will create much additional work in relation to its truth recovery and thematic processes. NGOs also invest large amounts of resources into supporting victims and survivors through such processes, which also goes unrecognised.

9.2 We would also have some concerns about the proposal for cross-sectoral governmental and NGO projects. While there is nothing against them in principle, especially if they work, there is potentially a danger of some limitations for NGOs in terms of their independence and their ability to deliver services untrammelled by bureaucracy.

10.1 The independence of the Commissioners [8:136] is vital, but so too is the independence of its secretariat, which is not covered in the CGP’s report. All Legacy Commission staff should be recruited by public advertisement and should be appointed by the Commissioners or, once appointed, by senior staff within the Commission. They should not be seconded civil servants, or former members of the security forces, or former paramilitaries.

10.2 We question the CGP’s proposal that its Investigation and Review Team should include those with “police expertise” [8:144]. One of the big disadvantages of the HET is its reliance on (mainly retired, mainly male) police officers, many of them from outside Northern Ireland. Many of these external staff commute weekly to their homes in Great Britain, thus adding greatly to the HET’s costs and also leading to high turnover of staff because of the pressures such absenteeism puts on family and social life. Another disadvantage is that these staff import police attitudes, which are essentially security-force friendly – we have been told that some HET officers have difficulty crediting the facts that they are tasked with investigating. Such external staff also lack local knowledge, and are vulnerable to being given misleading information by those who do have local knowledge. Another problem is that traditional police investigation methods are not particularly apt for the investigation of historic, and often emblematic, cases; a defect which the HET has recently acknowledged by instating a Senior Investigating Officer system.

10.3 Clearly the Legacy Commission will need some police expertise, but, even if their investigators are to have police powers, which they will need [8:146], considerable thought needs to be given to the training of these investigators. They should not simply adopt the procedural practices of either the HET or PONI, or some amalgam of the two, but an investigation process should be devised which is customised and fit for purpose. Civilian investigation models such as those adopted by the various Ombudsmen (other than PONI) and the Criminal Cases Review Commission should be considered and raided for best practice. NGOs also have considerable experience of investigating historic deaths, dealing with bereaved families, and applying human rights principles to investigations.

10.4 We also believe that the time has come to trust people from Northern Ireland to deal with their own past. The recession is putting many young lawyers, for example, out of work, who could be a good source of investigators. Properly trained and motivated to stay for five years, such a group of people could provide a more diverse pool of local potential leadership and inspiration for dealing with the past long after the lifetime of the Legacy Commission.

11.1 The proposal to set up a completely independent investigation mechanism that will build on the work of the HET and PONI [7:125] is welcome in principle, as is the proposal to follow the HET’s chronological approach with exceptions [8:145] and to allow for the re-opening of cases already examined by the HET [8:144] or even cases examined by the Legacy Commission where new and compelling admissible evidence emerges [8:146] (although one does wonder what happens if new and compelling but inadmissible evidence comes to light). Also welcome is the proposal to publish the criteria governing the conduct and completion of reviews [8:146].

11.2 We agree that the Legacy Commission should have access to the Stalker/Sampson and Stevens archives [8:153 – 154] and that the UK government should release the documents sought by Judge Baron in the Dublin and Monaghan bombing and other cases [8:158].

11.3 We also agree that the Legacy Commission should have the discretion to look at post-Good Friday Agreement cases [8:155].

11.4 The proposal for thematic investigations is also welcome in principle [3:69], as is the proposal that one of the themes to be considered should be collusion [3:70]. The publication of a list of cases to be examined under the thematic process is a good idea [8:147], but there does not seem to be a similar proposal in relation to thematic examinations which are issue- rather than case-based.

11.5 The suggestion that thematic reviews will not commence until two years into the five-year timeframe [8:135] is problematic. Issues such as collusion have arisen throughout the conflict in one form or another. Although the majority of conflict-related deaths cluster around the earlier years of the conflict, the themes and patterns those early deaths throw up will not always be the same as later themes and patterns. It may prove difficult to examine every important theme, or fully investigate particular themes, in a three-year period. It is also unfortunate that there is no proposal that the Legacy Commission should publish recommendations for the prevention of any recurrence of issues examined thematically.

11.6 We think it is right that reviews should continue regardless of family engagement, so as not to hamper the thematic process [8:150]; that families should retain the right not to engage in a review [8:144]; and that family consent should be required for the Information Recovery process [8:135]. However, if a particular case is to be examined within the thematic process without family consent – for example, were the Legacy Commission to insist on examining the Finucane case against the express wishes of the Finucane family – that could give rise to legal challenges.

11.7 It is not clear to us why the Information recovery and thematic processes should be mutually exclusive [8:135].

11.8 However, what the CGP proposes in relation to another important function – answering the concerns of relatives – is that it be hived off into a separate process known as Information Recovery [7.125], which will take place behind closed doors and will be modelled on the process adopted in Ireland in an attempt to find the bodies of the Disappeared. Intermediaries will be appointed by all relevant actors, whether state or paramilitary, who will interrogate their own constituencies for information and relay it back second-hand. Even though the Legacy Commission will have the power to order discovery and compel witnesses, the process will remain private, with no opportunity for the bereaved family to directly question anyone. We accept that neither the HET nor PONI provide such an opportunity to families either, but the CGP explicitly states that there will be no more public inquiries in Northern Ireland [8:154], whereas with both PONI and the HET that avenue has always been available, although a distant prospect.

11.9 This separation of “investigation” from “information” is not an improvement on the approach developed by the HET, which has been holistic and has sought to answer all a family’s questions in one report. Families who have lost a loved one do not, in our experience, separate in their minds police procedural issues from other questions. The primary question they want answered is, “Why?” The answer to that question often only emerges when all their questions are answered in one place. It is also important to most families that a single report both sets out those facts which can be ascertained, and acknowledges with authority any ways in which the state has failed them.

11.10 It may be that there is some information which can only be recovered via intermediaries, and that a mechanism needs to be established to facilitate that process, but the CGP seems to us to have confused information which is in the possession of the state with information that is possession of non-state actors such as paramilitaries. Paramilitaries are obviously not going to come forward with information about their activities without guarantees of anonymity and immunity from prosecution. State officials, on the other hand, hold information in trust on behalf of the public. They must clearly have regard to the right to life and the right to privacy, but when someone has been killed the public interest and the interests of the bereaved must be weighed with those concerns and a balance struck. The bereaved, in our view, have the right to know the truth, however uncomfortable disclosure may be for the authorities. Equally important, where a state actor has acted outside the law, then impunity should not be available, according to all international human rights standards.

“But the Group does not see the outcome of the information recovery process or thematic examination as blaming or naming individuals. In the process of information recovery, the aim is to resolve unanswered questions. In thematic examination, the purpose is to look at overall accountability, not individual accountability; to identify areas where things went wrong and why they went wrong; to gain greater understanding; to encourage apology where appropriate; and to build a shared and reconciled future.” [7:63]

What the CGP is proposing, when it speaks of not naming or blaming, is an amnesty by any other name and impunity on a massive scale.

11.12 We also have great concerns about public and family access to information. The CGP says:

“The Commission should have the discretion to decide how much information would be made available to the family or put in the public domain, bearing in mind its obligations in respect of protection of information and data, its duty to protect life, the interests of national security, and the objective of promoting reconciliation. Subject to these obligations, the Commission would as far as possible keep the families informed of progress in their case and answer their questions.” [8:151]

Thus the needs of families come at the end of a long list of caveats, which include the interests of national security and the objective of promoting reconciliation. The CGP cannot seriously be proposing that the Legacy Commission would suppress information in the interests of reconciliation! That would involve a degree of paternalism, abuse of power, lack of transparency, and playing god which would be counter-productive as well as wholly unacceptable.

11.13 In relation to national security, the following offers a crumb of comfort, but no more than that:

“In cases where government agencies considered that information supplied by them should not be put in the public domain for reasons of national security or risk to life, the Group expect that disagreements between the Commission and the agencies would be rare. In the event of disagreement, the Commission would seek to resolve the matter, according to agreed criteria, with the relevant agencies or, if necessary, the responsible Minister. However the final decision would rest with the Commission, bearing in mind the obligation to protect life under Article 2 of the European Convention of Human Rights (ECHR).” [8:151]

12.1 The CGP’s attitude towards hard-won public inquiries is exceptionally negative [6:111 – 114], majoring on cost and failing to recognise the emblematic nature of these inquiries in the absence of any other available remedy, or the significance of these inquiries for many other families apart from those directly affected.

12.2 We can see no need for the UK government to review the Wright, Nelson and Hamill Inquiries [8:154], or for the Irish government to review the Buchanan & Breen Inquiry [8:158]. Indeed, any such reviews would be a gross interference with the independence of those inquiries, unless the inquiries themselves felt the need for governmental review because, for example, of lack of co-operation of state agencies.

12.3 Nor can we see any prospect that the Legacy Commission’s proposed powers of investigation could supply the public, judicial inquiry recommended for the Finucane family by Judge Cory and promised by the UK government in terms in the Weston Park Agreement [8:154-155]. Indeed we are deeply concerned by the letter sent by the NIO to the Finucane family and actually received on the twentieth anniversary of Patrick Finucane’s murder, which said:

“You will also be aware that the Consultative Group on the Past published their report on 28 January, in which they made a number of recommendations to Government about dealing with the legacy of the past in Northern Ireland. I would like to assure you that no decision has yet been taken by Government in relation to any of the Group’s recommendations, including their recommendations in relation to any Finucane Inquiry.

We will be reflecting carefully on the Group’s findings over the coming months and talking to a wide range of people. We would, of course, welcome any views that the Finucane family wishes to offer on these or on any of the other proposals in the report. All these matters, like the outcome of discussions with the Finucane family or their legal representatives about the form of any inquiry will, of course, be relevant factors for Ministers in deciding whether it remains in the public interest to proceed with an inquiry.”[2]

It is crystal clear to those of us who have followed the Finucane case closely over the decades that the government is getting ready to move the goal posts once more in relation to their cast-iron promise of a public inquiry, enshrined in the Weston Park Agreement. It is a matter of regret that the CPG has allowed itself to be used in this way.

The CGP is wrong to conclude that it is the mere existence of a number of controversial historical cases that has bogged down the coronial system in Northern Ireland. The reason it is in chaos lies in a package of restrictive rules and legislation which limited its remit to the point of strangulation; a long-term failure by the UK government to provide Article 2-compliant investigations and to implement relevant rulings of the European Court on Human Rights; and obstruction by the security forces, particularly the police, when it comes to discovery. The CGP does well, in our view, to leave inquests alone [8:156].

14.1 We welcome the CGP’s acceptance that it cannot deprive people of their right to access to justice in the name of the pursuit of peace and reconciliation [2:57], but agree that there is a need for greater realism on the part of some victims about the prospects of successful prosecutions in old cases [7:127]. Unsurprisingly, we also agree that justice must be impartial and apply equally to all [2:58].

14.2 It follows from this that, where there exists hard evidence of a crime against any prisoner still on the run, a file should be submitted to the DPP in the usual way, but there may be some merit in allowing this issue to fade into the past at the end of the Legacy Commission’s investigations [8.157], since the chances of successful prosecutions will by then have been exhausted. However, we would have concerns about the CGP’s proposal that the Legacy Commission gives consideration to a general amnesty at the end of its term of office [7:132], because of the impunity consideration explored earlier in this response.

14.3 The CGP is right not to interfere with the role of the Criminal Cases Review Commission [6:117 – 118], especially since the type of investigations envisaged under the remit of the Legacy Commission is unlikely to be equipped to spot any than the most obvious miscarriages of justice. The CGP does not appear to have recommended that the Legacy Commission should be able to refer cases to the CCRC, but it will obviously require this power.

14.4 BIRW agree with the CGP that those with conflict-related convictions need to be better integrated into society [3.81 -2]. In particular, we believe that those who hold such convictions should not be debarred from receiving compensation in unrelated matters. This is not only wholly unfair to the former prisoners, but in many cases has an adverse impact on their families, who have committed no offence.

15.1 While we strongly agree that sectarianism needs to be tackled and that the churches have a positive role to play in doing so [3:76 – 78], this is a very serious issue which needs to be tackled at all levels and by all organs of society. In particular, attention needs to be paid to institutionalised sectarianism, which has been seen in the army, the police, the prison service, many aspects of the criminal justice system, some large employers, the civil service, and many other organisations.

15.2 The role of the Chair of the Legacy Commission in combating sectarianism, as envisaged by the CGP, is welcome [8:141].

16.1 We agree with the CGP’s finding that the impact of the conflict on young people has been particularly devastating [3:73]. Since young people are the future, special attention needs to be paid to their needs.

16.2 Although it does not seem to appear anywhere in the report, I believe that Lord Eames and Denis Bradley were right to question when they launched their report the message sent by segregated education to young people that separation is alright. We also agree that anti-social behaviour among young people has been poorly addressed because of so-called community policing by paramilitaries [3:75]. However, there should be more emphasis on eradicating the causes of that behaviour than on ensuring that its consequences are dealt with by the mainstream criminal justice system.

of our common humanity and of the best and the worst that is in all of us.” [5.96]

“While remembering is a positive process for many people, for others it holds a number of potential problems, including the potential to re-traumatise people, to stir up triumphalist posturing, or simply engender feelings of bitterness and hatred.” [5:97]

That is why it is so important, as the CGP emphasises, that every individual and community has the right to tell his/her/their story but also to be heard by each other [5:99], and that storytelling should not put anyone at risk of prosecution or retaliation [5:99].

17.2 We agree with the CGP’s suggestion of retaining the Day of Reflection and adding “and Reconciliation” to its title, and that OFMDFM should make public statements on that day encouraging both reflection and reconciliation [5:101].

18.1 We have already suggested that five years is too short a period for this project, and that the three years allocated to thematic reviews may also be too short. In particular, we are concerned about the long-term needs of victims and survivors. Another concern is that there may be cases left unresolved or uninvestigated at the end of the five years. If the Legacy Commission runs to time, it will be one of the few initiatives ever to have done so.

18.2 The CGP suggests that, at the end of its five years, the Legacy Commission should “challenge” the people of Northern Ireland, including political parties and (former) paramilitaries, but not, we note, governments, to sign a declaration that they will never again kill or injure others on political grounds [2:55]. This creates a hostage to fortune which has the potential to re-open major divisions (between those who sign and those who do not), thus undoing at a stroke the Legacy Commission’s work. It is also philosophically and morally problematic – was it wrong to fight fascism?

18.3 There is, though, strong support for the notion of “never again” on all sides of the community. The CGP recommends that its proposed Reconciliation Forum should consider the possibility of a shared memorial for the victims of the conflict [5:104] and floats as one possibility a garden of remembrance [5:103]. Perhaps rather than a potentially divisive declaration, an invitation could be issued for a mass attendance at the opening of such a memorial, possibly at a location spanning the border, with arches at each entrance inscribed with the legend “never again”. So long as it was made clear that no blame was attached to non-attendance, and that this occasion was not appropriate for demonstrations of any kind, such a gesture could offer an inclusive opportunity to renounce violence without the waving of almost certainly meaningless pieces of paper.

[1] Office of the First Minister and Deputy First Minister of the Northern Ireland

Assembly, who are responsible, among other things, for human rights

[2] Letter from Simon Marsh to Madden & Finucane, 10 February 2009

DEALING WITH THE PAST

27 February, 2009 |