British Irish Rights Watch

dealing with the past in

northern ireland:

response to the government’s consulatation on the report by the consultative group on the past

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 take no position on the eventual constitutional outcome of the conflict.

We commend the work of the CGP, who have produced a thoughtful and thought-provoking report on what is probably the most challenging issue facing Northern Ireland today. We do not agree with all their proposals, but we recognise that they are the result of deep and sincere deliberation and wide consultation.

We agree with the government that dealing with Northern Ireland’s turbulent past is essential if Northern Ireland is not to slide back into the violence to which small numbers of dissidents would like to return. We also agree that political leadership is vital to the ability of Northern Irish people to put the past behind them. However, we emphasise that dealing with the past can not be a selective process. Every aspect of “the past” (which in reality is shorthand for the causes and effects of the conflict) must be addressed, including,as the Consultative Group on the Past (CGP) has acknowledged, the issues of state collusion and personal and collective accountabilty.

We are concerned that the political uncertainty surrounding next year’s General Election may mean that the government’s reponse to this consultation is never implemented. One way of ensuring that this issue is not allowed to fall through the political cracks would be to appoint an oversight commissioner tasked with carrying this issue forward. Such a commissioner would need to be a person of international stature who could command cross-community support in Northern Ireland and would also need all the necessary resources to carry out his or her work effectively.

We agree with the government that it is neither practical nor conscionable to seek to impose a solution on the people of Northern Ireland. Only they can face up to their past. However, while the people of Northern Ireland must own the process of dealing with the past, it must be acknowledged that their past is not entirely of their own making. Both the United Kingdom and the Irish governments bear some responsibility for what has happened in Northern Ireland over the past 40 years, and they too must conduct a critical self-examination of their respective roles and put measures in place to ensure that past mistakes and wrong-doing are not repeated.

Despite the inclusion of human rights compliance in their working principles, there is very little reference to human rights themselves in the CGP’s report, nor the role of human rights NGOs, which 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 that 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.

If the people of Northern Ireland are to be enabled to put the past behind them and move together into a shared future, then a number of reforms of are necessary, many of which are not covered by the CGP’s report, such as reinstating the right to silence, abandonning the shoot-to-kill policy, making the Human Rights Act retrospective, and hastening the progress of Northern Ireland’s Bill of Rights.

Of one thing we are certain: the past in Northern Ireland can only be dealt with by confronting it and acknowledging that great wrong has been done on all sides. Once that initial step is taken, anything is possible. Without it, nothing is possible. Sweeping the past under the carpet is not an option. Dealing the past will take a great deal of time, courage and imagination. Above all, something has to happen which has not been allowed to happen in the past: the people of Northern Ireland must be trusted to find their own solutions to their own problems.

We agree that a Legacy Commission and a Reconciliation Forum should be established, but we have some reservations about the roles envisaged for both bodies by the CGP.

It is our belief that from truth flows justice and from justice flows reconciliation. Unless people know the truth, they cannot obtain justice, and unless they can obtain justice they may not be able to achieve reconciliation, but only acceptance or resignation. The key to dealing with the past in Northern Ireland, as has been the case in other countries emerging from conflict, is achieving a consensus about the truth about what has happened. This exceptionally difficult and challenging goal requires every actor, whether individually or collectively, to examine their actions and the effect of those actions on others, to acknowledge those actions and their consequences, and to take responsibility for them. Much of what happened in the past in Northern Ireland has been characterised by lies, denial, and cover-ups. Creating a culture of truth-telling will not be easy. Still more difficult will be achieving any consensus about the truth. The extent to which a Legacy Commission is able to establish such a culture and such a consensus will determine whether the people of Northern Ireland can deal with their past and move forward together. 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.

We believe that the Legacy Commission should focus on establishing the truth, which we see as being a precursor to using the ordinary systems of justice where the truth justifies their use and where they can provide an effective remedy for injustice. It seems to us that to allow the Legacy Commission to become involved in any way in delivering justice would gravely hamper its ability to establish the truth and, hopefully, achieve reconciliation, since the systems of justice can involve retribution, the payment of compensation, and apportioning of blame, all of which are inimical to establishing the truth, and, especially, to achieving reconciliation.

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. We also concur with the CGP’s adoption of the definition of victims and survivors as set out in the Victims and Survivors (Northern Ireland) Order 2006.

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, and the government was wrong to reject it prior to this consultation.

The CGP are quite right when they say that victims and survivors have not received the support they need and deserve. 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. We also agree that aftercare for members of the security forces and prison officers laves a lot to be desired, and that more needs to be done for all those suffering from post-traumatic stress disorder, as well as those who are indirect victims of the conflict. It is also true that the social security benefits system often fails to meet the needs of victims and survivors. As the CGP has recognised, the conflict has had serious socio-economic consequences, creating wide regional differentials which need to be addressed and redressed through a wide range of measures. The CGP is also correct to highlight the fact that all communities have been victimised as communities, both internally and externally.

Once the Legacy Commission disappears, the Commission for Victims and Survivors (CVSNI) 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 CVSNI should play in dealing with the past generally and in relation to the Legacy Commission in particular.

It is vital that someone of international standing who can command the respect of all communities in Northern Ireland heads the Legacy Commission. Ideally, that person should have some understanding of the situation in Northern Ireland. It may be that the oversight commissioner that we propose in our introduction could become the International Commissioner, in which case he or she would have a period of time in which to acquire some understanding of Northern Ireland.

Although the Legacy Commission’s primary purpose is helping people to deal with the past, its ultimate aim is to assist people to move on into a better future. It seems to us that the reason for investigating what happened in the past is not just to draw a line in the sand, but to learn the lessons from the past so as to ensure that the mistakes and wrong-doing are not repeated. We therefore recommend an additional strand to the LG’s work: “learning the lessons from the conflict and making recommendations to ensure that history does not repeat itself”.

The CGP 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 under the conflict, simply deferring that moment for five years. If, as the CGP rightly asserted, 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. We would suggest that the initial lifetime of the Legacy Commission should be ten years, with an open-ended review at that point to see whether it can be said to have completed its work. The Legacy Commission itself should develop benchmarks to enable it to see when its work is done. If its work is not complete at the end of the ten years, then it should be extended for as long as necessary.

It is vital that the Legacy Commission should not be set up to fail. If there is to be a Legacy Commission, it must have the wholehearted support of both governments and the devolved administration; it must have the resources it needs to do its job well; and it must be allowed the flexibility to change both its working methods and its remit if necessary.

What is particularly valuable about the CGP’s recommendations is that they take a holistic approach to dealing with the past. The consequences of the conflict for Northern Irish society have been devastating, and have been to the detriment of the whole community, as well as being particularly damaging to particular individuals and communities. These matters must be tackled if the peace process is to grow its shallow roots and Northern Ireland is to have a better future.

However, the Legacy Commission cannot necessarily deliver lasting change on all these fronts by itself. For example, while we strongly agree that sectarianism needs to be tackled, this is a very serious issue which needs to be addressed at all levels and by all organs of society. In particular, attention needs to be paid to institutionalised sectarianism.

We think that the Legacy Commission should study the provision that already exists in all the areas identified by the CGP, identify the gaps, and any other issues not already on the list, and then make proposals for change. The Legacy Commission should have the power to appoint oversight officers where it sees the need, who should themselves have the necessary powers to make change happen. There are, of course, huge resource implications behind making most social changes, but somehow those resources must be found. Northern Ireland is broken, and needs fixing, and that is not going to be a cost-free undertaking.

In most of the areas listed by the CGP, there are already people on the ground doing excellent work. The Legacy Commission can most usefully co-ordinate that work and foster co-operation, acting as a facilitator and encourager, and, where necessary, an enforcer. However, where sectarianism is concerned, we believe the Legacy Commission, albeit it cannot eradicate sectarianism on its own, should take a very firm lead. Sectarianism, with its unfortunate tendency to spill over into racism and other hate crimes, is possibly the single biggest obstacle facing Northern Ireland’s transition to a normal, peaceful society.

It sounds to us as if the functions that the CGP recommends for the Reconciliation Forum lie more properly with the Legacy Commission. In fact, it would be very strange if the Legacy Commission did not have these functions, as it would turn it into a toothless tiger in many ways. If it is to have these functions, then the Reconciliation Forum would be duplicating a lot of its work. We would see the Reconciliation Forum as exercising some oversight on the activities of the Legacy Commission; providing a forum for co-ordination and dialogue between the three principal members; providing feedback to the Legacy Commission from victims and civil society; and acting as a think tank.

We agree with the CGP’s finding that the impact of the conflict on young people has been particularly devastating. Since young people are the future, special attention needs to be paid to their needs. We believe that the CGP were right to question the message sent by segregated education to young people that separation is alright. While an understanding of all religions should be taught to school-children, partly in order that they do not lose their cultural reference points and partly to instil religious tolerance, we question whether religion as such should be taught in schools. At the very least, parents should have the option of choosing a secular education for their children. It cannot be healthy for the majority of children to be so segregated from children from other communities during the formative years of their lives.

Human rights should be taught to children of all ages, before children have internalised stereotypes and prejudices which then become very hard to shift. It is a matter of very great regret that human rights are not taught to GCSE or A level standard in schools, nor is there a first degree in human rights taught at any university. Northern Ireland should be the first to break the mould.

BIRW agree with the CGP that those with conflict-related convictions need to be better integrated into society, and that will not happen while such people are condemned to perpetual unemployment. Many ex-prisoners have renounced violence and want to contribute something positive to society, often using skills acquired while in prison. Society should not stand in their way. We believe strongly 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.

The proposal to set up a completely independent investigation mechanism that will build on the work of the Historical Enquiries Team (HET) and the Police Ombudsman (PONI) is welcome in principle. However, BIRW have always said that this proposal 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 on Human Rights (ECHR), which protects the right to life; and was properly resourced.

We agree that the Legacy Commission should have access to the Stalker/Sampson and Stevens archives and that the UK government should release the documents sought by Judge Baron in the Dublin and Monaghan bombing and other cases.

We also agree that the Legacy Commission should have the discretion to look at post-Belfast/Good Friday Agreement cases. Many deaths arising even to this day have their roots in the conflict, and, indeed, remain unsolved; it would be unfair to exclude such cases from investigation.

In view of the nature of the issues that the Legacy Commission will be examining, we believe that the Commissioner responsible for this work should be legally trained and should have considerable legal experience. The independence of the Commissioners is vital, but so too is the independence of its secretariat, which is not covered in the CGP’s report. BIRW believe that the Legacy Commission should consider a less police-oriented approached to investigations, and draw on the expertise of other bodies such as the Criminal Cases Review Commission and NGOs.

Although ideally investigations should be chronological, were the Legacy Commission to simply start again from 1969 those who have been waiting for a HET or PONI investigation would be severely disadvantaged. Also, by the time their cases came to be examined valuable time would have been lost, and with it evidential opportunities. We therefore recommend that four teams be set up, to deal with each decade from the 1970s (to include 1969) to the 2000s. The teams need not be of equal size, since the majority of deaths occurred at the beginning of the conflict (although many of these have by now been investigated by HET and PONI, which may reduce the workload considerably). The HET has devised sophisticated computer software for linking cases, and each team should be trained to look for linkages. It may be advisable to have an additional small team solely dedicated to studying trends. Such a system would have the advantage of putting all victims on an equal footing, with investigations gaining from as little time lag as possible.

We strongly disagree with the proposal to separate investigation from information recovery. What is required is a holistic truth-recovery process. After nearly two decades of experience of working with the victims of historical cases – which are, of course, anything but historical to most victims – we are convinced that the majority of victims want above all to know the truth about what happened to themselves or their loved ones, for any wrong-doing to be acknowledged and repudiated, and for the lessons to be learned so that what happened in their case never happens to someone else. Any Legacy Commission that is established will fail in its mission if it does not heed those needs, which are common to the majority of victims. We also have great concerns about public and family access to information.

The proposal for thematic investigations is welcome in principle, as is the proposal that one of the themes to be considered should be collusion. However, the suggestion that thematic reviews will not commence until two years into the five-year time frame is problematic.

The CGP’s attitude towards hard-won public inquiries is exceptionally negative. We can not 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.

It is important to recognise the difference between an amnesty and impunity. An amnesty implies that someone is guilty of wrong-doing, but exempts him or her from sanctions. Impunity occurs when someone is absolved from an obligation to hold him- or herself to account. Amnesties are sometimes necessary for the greater good, for example, when the police agree not to prosecute those who hand in illegally-held weapons, and usually apply to non-state actors such as criminals and paramilitaries. Impunity usually applies to those in power, and is seriously problematic in a democracy, where we confer power on individuals in return for accountability. 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.

If stories are never told, they are never heard, and the lessons are lost. Story-telling in the context of a Reconciliation Forum would provide some degree of official recognition for the victim, and also provide the opportunity for breaking down the “hierarchy of victimhood” mentality espoused by some, by giving all stories equal validity. It should be remembered that story-telling is one of the raw materials for creating history, so documentation of stories is vitally important.

We agree with the CGP that listening is as important as telling; that validation by an authoritative listener is important; that participants should choose how much of their story should be made public; that prosecution and/or retaliation should not be a consequence; that story-telling should be used to promote reconciliation rather than political agendas; and that the Reconciliation Forum should promote criteria for appropriate modes of story-telling. However, we do not agree that funding should be directed only towards those promoting reconciliation. There have been too many silent voices throughout the conflict. For some people, telling their story is a big first step towards eventual closure, for want of a better word. In our view, no voice should be silenced on grounds of political correctness. People will never listen if they themselves are not allowed to speak, or are told that what they say is not acceptable. Furthermore, if people speak and find that they are out of step with the majority, it may cause them to examine their attitudes. Funding should not be used as a tool of social engineering in this way, especially when it infringes on the right to freedom of expression.

BIRW support the continuation of the annual Day of Reflection and the renaming the event a Day of Reflection and Reconciliation. We believe that there is room for both public and private reflection.

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 or members of the security forces, to sign a declaration that they will never again kill or injure others on political grounds. 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? Furthermore, the vast majority of people in Northern Ireland have never killed or injured anyone on political or any other grounds. If the Legacy Commission is successful in its work, there will be no need to challenge people in this way. Expecting people to sign such a declaration will seem irrelevant to many and an insult to the intelligence of others.

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. We doubt that Northern Ireland will be ready for a shared memorial to the conflict in five short years. There is, though, strong support for the notion of “never again” on all sides of the community. Perhaps when the time is right, 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”.

Except where we disagree with the proposals, we think they should have a positive impact on all members of Northern Ireland society.

The CGP’s proposals do disadvantage certain groups in ways that we spell out in our response.

We hope that there will be a full Equality Impact Assessment on the government’s eventual proposals.

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 take no position on the eventual constitutional outcome of the conflict.

1.2 We welcome this opportunity to respond to the government’s consultation exercise on the report of the Consultative Group on the Past (CGP). We pay tribute to the work of the CGP, who have produced a thoughtful and thought-provoking report on what is probably the most challenging issue facing Northern Ireland today. We do not agree with all their proposals, but we recognise that they are the result of deep and sincere deliberation and wide consultation.

1.3 We agree with the government that dealing with Northern Ireland’s turbulent past is essential if Northern Ireland is not to slide back into the violence to which small numbers of dissidents would like to return. We also agree that political leadership is vital to the ability of Northern Irish people to put the past behind them. However, we emphasise that dealing with the past can not be a selective process. Every aspect of “the past” (which in reality is shorthand for the causes and effects of the conflict) must be addressed, including,as the CGP has acknowledged, the issues of state collusion and personal and collective accountabilty.

1.4 We share the government’s regret that the debate about the CGP’s proposal for a £12,000 recognition payment overshadowed proper consideration of the whole of the CGP’s report, but note that the Secretary of State’s announcement that this proposal would not be implemented, made before the consultation exercise was announced, was not helpful. We comment on this matter further in our response to recommendation 4 below.

1.5 We are concerned that the political uncertainty surrounding next year’s General Election may mean that the government’s reponse to this consultation is never implemented. As the government itself has said, dealing with Northern Ireland’s past is crucially important. We urge the government to do all it can to ensure that this issue is not allowed to fall through the political cracks. One way of doing that would be to appoint an oversight commissioner tasked with carrying this issue forward. Such a commissioner would need to be a person of international stature who could command cross-community support in Northern Ireland, rather like the International Commissioner proposed by the CGP. The oversight commisioner would also need all the necessary resources to carry out his or her work effectively.

1.6 We agree with the government that it is neither practical nor conscionable to seek to impose a solution on the people of Northern Ireland. Only they can face up to their past. While consensus would be ideal, where it cannot be achieved then, as with the Belfast/Good Friday Agreement, a referendum may be necessary to establish the views of the majority, which must then prevail in accordance with democratic principles. However, while the people of Northern Ireland must own the process of dealing with the past, it must be acknowledged that their past is not entirely of their own making. Both the United Kingdom and the Irish governments bear some responsibility for what has happened in Northern Ireland over the past 40 years, and they too must conduct a critical self-examination of their respective roles and put measures in place to ensure that past mistakes and wrong-doing are not repeated. We recommend that both governments set up a unit, staffed by open recruitment outside the civil service, to conduct such an examination and produce a report on the government’s role, which must be published. We suggest that these two units should report in the first instance to the oversight commissioner that we have recommended, and ultimately to the International Commissioner recommended by the CGP.

1.7 There are two significant omissions from the CGP’s report. Despite the inclusion of human rights compliance in their working principles, there is very little reference to human rights themselves in the report, nor the role of human rights NGOs, which 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 that 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.

1.8 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 [Chapter 3: pages 62 – 65 of the CGP’s report[1]] is the poorer for the omission of all these perspectives.

1.9 In our original submission to the CGP, we made a number of recommendations about what we thought needed to happen if the people of Northern Ireland are to be enabled to put the past behind them and move forward together into a shared future. Not all of those proposals were contained in the CGP’s report, although many of them were. The consultation is of necessity limited to what is contained in the CGP’s report, but we do not want our proposals to be lost sight of, so have decided to reproduce what we said here:

1. All the victims of the conflict should be provided with all the facilities and resources they need, including effective mechanisms for dealing with the past, so that they can heal and move forward.

2. A mechanism must be found for all those who contributed to the conflict to acknowledge their role. This process should be led by the British and Irish governments. The long-term objective of such a process should be a shared narrative of the past and a shared determination never to allow that past to repeat itself.

4. All public bodies should be placed under an explicit statutory duty to conduct mandatory anti-sectarianism training, and monitoring of complaints about sectarianism and the outcome of those complaints.

5. The Freedom of Information Act should be reviewed with a view to increasing the accountability of all public bodies.

6. Public Interest Immunity Certificates should only ever be used where there is a need to safeguard the public interest. They should never be used to cover up government wrong-doing or incompetence.

7. All current instances of surveillance in Northern Ireland should be reviewed to see whether they are truly justified, and where surveillance or interception is to be used a case must be made for its use; a proper authorisation procedure must be put in place (which should include refusal of authorisation); and people who suspect they have been wrongly made the subject of such techniques should have access to a meaningful avenue for challenging their use.

10. Save in exceptional circumstances, substantive reasons for their decisions should be given by the PPS to all victims.

11. It is essential that the courts are rigorously independent and themselves transparent.

12. The government must fulfil its promise to hold an independent, public, judicial inquiry into the murder of Patrick Finucane.

13. The Inquiries Act 2005 must be repealed and replaced with a mechanism that can provide a truly independent and effective investigation.

14. Measures must be taken to strengthen the right to a fair trial, including the total abolition of juryless trials and the restoration of the right to remain silent.

15. The shoot-to-kill policy leads to the death of innocent people and should be replaced by a policy of shooting to incapacitate, which should be a method of last resort.

16. Legislation should be introduced urgently to reform the inquest system in Northern Ireland in line with the recommendations made by the Luce Review.

17. Plastic bullets, tasers, PAVA pepper spray and CS spray should all be banned.

18. The PSNI should make swifter progress towards becoming a routinely unarmed police service.

19. All gun licences should be reviewed and there should be tighter controls on the availability, sale and storage of weapons.

20. Decisions that involve the distribution or spending of public money and resources ought to be subjected automatically to an Equality Impact Assessment.

21. There should be a greater emphasis on diversity and multiculturalism in Northern Ireland, and a taskforce should be set up to promote them within the Office of the First Minister and Deputy First Minister.

22. Parents should be given the option of a secular education for their children, although pupils should be taught an understanding of all religions.

23. Pupils should be taught about conflict, diversity and human rights at all ages.

24. Human rights should be available as GCSE, A level, and first degree subjects.

25. All elections should be held on the basis of proportional representation, possibly using the single non-transferable voting system.

26. Ministerial posts in the Northern Ireland Assembly should be distributed more fairly.

29. Section 13 of the European Convention on Human Rights, which confers to right to an effective remedy, should be inserted into the Human Rights Act 1998.

30. The process of producing a Bill of Rights for Northern Ireland is as important as the end product and must be as inclusive as possible.[2]

This is a formidable list of reforms, and we doubt that it is exhaustive. Others, we are sure, will have more, maybe better, ideas. We also recognise that our proposals are only a beginning and not an end to the process of building a better future for Northern Ireland. Some of these reforms will take years to achieve, and some of them may never be achieved, but if they are not Northern Ireland will be a poorer place.

The effects of 30 years of sectarian conflict in a place as small as Northern Ireland are possibly at least as devastating as a world war, with the added complication that many families have found themselves divided against one another, just as the communities are, rather than gaining strength from fighting a common enemy. Of one thing we are certain: the past in Northern Ireland can only be dealt with by confronting it and acknowledging that great wrong has been done on all sides. Once that initial step is taken, anything is possible. Without it, nothing is possible. Sweeping the past under the carpet is not an option. Moving forward together into a shared future unencumbered by the past will take a great deal of time, courage and imagination. Above all, something has to happen which has not been allowed to happen in the past: the people of Northern Ireland must be trusted to find their own solutions to their own problems.”

1.10 In the rest of this response, we answer the questions posed by the government.

An independent Legacy Commission should be established to deal with the legacy of the past by combining processes of reconciliation, justice and information recovery. It would have the overarching objective of promoting peace and stability in Northern Ireland.

Yes, although we have reservations about separating “justice” from “information recovery” (neither term is strictly accurate, in our view), which we set out in our response to recommendation 8 below.

2.3 To what extent is it effective to combine processes of reconciliation, justice and information recovery within a single body?

It is our belief that from truth flows justice and from justice flows reconciliation. Unless people know the truth, they cannot obtain justice, and unless they can obtain justice they may not be able to achieve reconciliation, but only acceptance or resignation. The key to dealing with the past in Northern Ireland, as has been the case in other countries emerging from conflict, is achieving a consensus about the truth about what has happened. This is an exceptionally difficult and challenging goal. It requires every actor, whether individually or collectively, to examine their actions and the effect of those actions on others, to acknowledge those actions and their consequences, and to take responsibility for them. Much of what happened in the past in Northern Ireland has been characterised by lies, denial, and cover-ups. Creating a culture of truth-telling will not be easy. Still more difficult will be achieving any consensus about the truth. The extent to which a Legacy Commission is able to establish such a culture and such a consensus will determine whether the people of Northern Ireland can deal with their past and move forward together into a shared future.

2.4 We agree with the CGP 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. 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 that 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.

2.5 If it is able to establish consensus about the truth, then the Legacy Commission will be ideally placed to facilitate the process of reconciliation. Since we regard reconciliation as being organically linked to truth, then an organisation that has the function of establishing the truth can naturally assimilate the promotion of reconciliation, although different skills are required in the two processes. Reconciliation, though, like truth-telling, is also a complex process. Reconciliation can only be achieved at a personal level, whether it concerns individuals, families or communities. It is a process which subsumes a range of other processes, such as understanding, mutual respect, and forgiveness. Reconciliation cannot be imposed on anyone, it must be embraced voluntarily. People have the right to refuse to be reconciled, even though it might be in their best interests if they could become so.

2.6 Of course, reconciliation is greatly facilitated if justice can be delivered. However, we think it is incorrect to characterise the CGP’s proposals for a Legacy Commission as incorporating a process for delivering justice, despite the wording of their recommendation. It is our understanding that what the CGP is proposing in relation to subsuming the functions of the Police Ombudsman, insofar as the past is concerned, and the Historical Enquiries Team (HET) is in fact a truth-recovery process. 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]. It seems to us self-evident that justice must be impartial and apply equally to all [2:58]. We believe that the Legacy Commission should focus on establishing the truth, which we see as being a precursor to using the ordinary systems of justice where the truth justifies their use and where they can provide an effective remedy for injustice. It seems to us that to allow the Legacy Commission to become involved in any way in delivering justice would gravely hamper its ability to establish the truth and, hopefully, achieve reconciliation, since the systems of justice can involve retribution, the payment of compensation, and apportioning of blame, all of which are inimical to establishing the truth, and, especially, to achieving reconciliation.

2.7 What alternative ways would you propose to deal with the legacy of the past?

BIRW do not advocate an alternative to the Legacy Commission but obviously it cannot deal with every aspect of the past. Those whose physical and/or mental health has been affected by the past will need medical, psychiatric and counselling services. Former paramilitary prisoners will continue to need support with reintegration into society. Broken families will continue to need social workers. Serious consideration should be given to whether the high level of segregated education in Northern Ireland is conducive to achieving a shared future. Economic and social deprivation and marginalisation must also be addressed. We strongly believe that the reforms we have listed in the introduction to this response are all required if the past is to be dealt with fully.

A Reconciliation Forum should be established through which the Legacy Commission and the Commission for Victims and Survivors for Northern Ireland (CVSNI) would liaise to tackle certain society issues relating to the conflict.

Yes, it is important that the Legacy Commission establishes a mechanism which allows for dialogue with victims and with civil society, and this seems a sensible proposal.

3.2 How might a Forum operate in practice, in relation to the organisations that might make up the Forum and other organisations outside of it?

The Legacy Commission should be given a bursary of £100m to tackle these society issues.

The CGP is correct in highlighting the very high cost the conflict has created in terms of social[3] needs for health care and other services, and social 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 the Police Ombudsman, 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 in supporting victims and survivors through such processes, which also goes unrecognised.

4.2 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.

4.3 How might the use of a bursary relate to existing expenditure on societal issues?

In our experience, victims of the conflict experience great difficulty in obtaining direct financial support and health services, particularly counselling. The CGP has identified health care, the role of young people in society, and tackling sectarianism as priorities. It seems to us that the Legacy Commission should conduct an Equality Impact Assessment on those areas, in order to identify the gaps in provision. Such an exercise would involve widespread consultation, and would assist the Legacy Commission in determining how best to use the bursary. As part of the process, the Legacy Commission should also ask those whom it consults whether there are other priorities it should consider. The Legacy Commission should measure all its decisions in terms of the benefits for victims of the conflict.

This is not rocket science. The Northern Ireland Office should draw up a list of all those services being provided, or work being done, in terms of health care, sectarianism and children in relation to the legacy of the past. The Legacy Commission can then take this into account when making its decisions.

be recognised. The nearest relative of someone who died as a result of the conflict in and about Northern Ireland, from January 1966, should receive a one-off ex-gratia recognition payment of £12,000.

If the government is determined not to take this proposal forward, it seems otiose to seek views on it.

5.2 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 and Survivors (Northern Ireland) Order 2006 [3:67].

5.3 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], and the government was wrong to reject it prior to this consultation.

5.4 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.

5.5 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 halfway house might be appropriate, in that they may wish to nominate a registered charity to which the payment could be made on their behalf.

5.6 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].

5.7 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.

5.8 Fifthly, while 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.

5.9 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 such payments are possible and there are many amongst the bereaved to whom £12,000 would make a modest but tangible contribution to their standard of living.

This question is clearly predicated on the government’s opposition to the very notion of this payment. If the government is determined not to make such payments available, then the best thing it can do to recognise the suffering of the victims – not all of whom are members of families – is to ensure that dealing with Northern Ireland’s past is not allowed to fall between the political or economic cracks.

The CVSNI should take account of, and address in their work programme, the present and future needs and concerns of victims and survivors, devoting attention to the provision of services, funding, healthcare needs and compensation.

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].

6.2 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].

6.3 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.

6.4 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.

6.5 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.

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

6.7 It is obvious, though, that a debate has been had about whether the Legacy Commission should subsume the role of the CVSNI, along with those of the HET and PONI. The CVSNI has clearly won this argument, which it probably should, as, once the Legacy Commission disappears, the CVSNI 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 CVSNI should play in dealing with the past (surely the CVSNI’ home territory?) generally and in relation to the Legacy Commission in particular.

6.8 Are the provision of services, funding, health care needs and compensation the areas which the CVSNI should prioritise?

These certainly seem like sensible priorities, but it is for the CVSNI to decide its own priorities, in consultation with victims.

The most important role that the CGP has identified for the CVSNI is convening the Reconciliation Forum [8:139 -140], although the CGP seems to have some doubts as to the CVSNI’s 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 CVSNI itself, but this is not proposed.

6.10 The CGP also says that the CVSNI 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 CVSNI’s 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.

6.11 Another role envisaged for the CVSNI 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 CVSNI 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

The Reconciliation Forum would also have a mandate to promote the improvement of services for healthcare issues attributable to the conflict, such as trauma, suicide and addiction.

BIRW do not disagree with this recommendation, as the more voices calling for health care for victims of the conflict the better. However, there seems to be overlap with CVSNI, which will have the enduring responsibility for these matters.

7.2 How would a Forum promote improvements to healthcare services in practice and how would it work with those organisations that already deal with healthcare issues?

This would be a matter for the Reconciliation Forum to decide, in consultation with those organisations.

The Chair of the Legacy Commission should be an International Commissioner, who would also have specific responsibility within the Commission for addressing society issues through the Reconciliation Forum, tackling sectarianism, promoting reconciliation and administering the bursary. There would be two other Commissioners.

Yes. It is vital that someone of international standing who can command the respect of all communities in Northern Ireland heads the Legacy Commission. Ideally, that person should have some understanding of the situation in Northern Ireland. It may be that the oversight commissioner that we propose in our introduction could become the International Commissioner, in which case he or she would have a period of time in which to acquire some understanding of Northern Ireland.

8.2 Are there other ways that international figures can help to deal with the legacy of the past?

Yes, the oversight commissioner we propose should also be an international figure of standing who can command the respect of all.

8.3 Although we firmly believe that ultimately the people of Northern Ireland must take charge of their own destiny, such have been the ravages of the conflict that they are some way from being in a position to do so. Until that role is reached international figures may still be required from time to time to assist in taking the peace process forward. Although there is an element of chicken-and-egg in the process, the more confidence people in Northern Ireland have in the peace process the more likely it is that those of ability will step forward to undertake challenging roles, and the less danger there will be that some of Northern Ireland’s brightest and best young persons move away from Northern Ireland. It may well be that the Legacy Commission should include fostering leadership skills among its activities.

-helping society towards a shared and reconciled future, through a process of engagement with community issues arising from the conflict;

We do, but with the reservations about separating the review and investigation of historical cases and what the CGP calls “information recovery”, which are set out in our comments on recommendation 19.

Although the Legacy Commission’s primary purpose is helping people to deal with the past, its ultimate aim is to assist people to move on into a better future. This is why we have suggested that it might consider how to foster leadership skills, which would seem to us to come under the first strand. It seems to us that the reason for investigating what happened in the past is not just to draw a line in the sand, but to learn the lessons from the past so as to ensure that the mistakes and wrong-doing are not repeated. We therefore recommend a fifth strand: “learning the lessons from the conflict and making recommendations to ensure that history does not repeat itself”.

The Legacy Commission’s mandate would be for a fixed period of five years.

No. The CGP 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 for five years. If, as the CGP rightly asserted, 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.

10.2 Would it be helpful for a Legacy Commission to have an option for a second period of a further five years?

Since we do not think that five years is long enough, we would suggest that the initial lifetime of the Legacy Commission should be ten years, with an open-ended review at that point to see whether it can be said to have completed its work. The Legacy Commission itself should develop benchmarks to enable it to see when its work is done. If its work is not complete at the end of the ten years, then it should be extended for as long as necessary.

We think it will take at least a decade for the Legacy Commission to complete its original remit. Inevitably, it will be on a steep learning curve at the outset, and it will require the flexibility to change its working methods as it sees fit in response to its experience and its growing understanding of its remit. The Legacy Commission should have the power to seek the authority of the two governments to make changes to its remit if it feels the need to do so.

The Office of the First Minister and Deputy First Minister (OFMDFM) should join the British and Irish Governments in implementing this initiative.

Yes. The CGP have rightly identified that both the Irish government and the OFMDFM 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 Minister.

11.2 What should the roles of the British Government, the Irish Government and the devolved administration be in taking forward proposals to deal with the legacy of the past?

Since the conflict largely took place within the United Kingdom it follows that the UK bears the responsibility for the conflict and its aftermath, and it should shoulder the heaviest burden in taking these proposals forward. However, the Irish government also played a role and cannot shirk its responsibilities. We have already proposed that both governments should set up units to examine their own parts in the conflict. Both governments must render every assistance to the Legacy Commission, and not obstruct its work in any way, nor allow any of its agents or servants to do so. In addition, both governments must co-operate fully with the Legacy Commission’s truth-recovery processes, and not allow the border to become an artificial barrier to cross-border investigations.

11.3 Similarly, the devolved administration must play its part, actively promoting the work of the Legacy Commission, and helping rather than hindering it.

11.4 It is vital that the Legacy Commission should not be set up to fail. Members of the Northern Ireland Assembly, the House of Commons and the House of Lords all made shameful attacks on the Northern Ireland Human Rights Commission (NIHRC), seriously hampering its work on a Bill of Rights for Northern Ireland, while the government stood by or damned them with faint praise. The government has starved both the NIHRC and the Police Ombudsman’s office of funding. If there is to be a Legacy Commission for Northern Ireland, it must have the wholehearted support of both governments and the devolved administration; it must have the resources it needs to do its job well; and it must be allowed the flexibility to change both its working methods and its remit if necessary.

Society issues arising from the conflict which should be tackled include: addressing sectarianism; promoting remembering activities; working with young people; providing improved services for healthcare needs; ensuring an even spread of economic benefits; and helping those exiled from Northern Ireland during the conflict to return.

Yes. What is particularly valuable about the CGP’s recommendations is that they take a holistic approach to dealing with the past. The consequences of the conflict for Northern Irish society have been devastating, and have been to the detriment of the whole community, as well as being particularly damaging to particular individuals and communities. These matters must be tackled if the peace process is to grow its shallow roots and Northern Ireland is to have a better future.

12.3 However, the Legacy Commission cannot necessarily deliver lasting change on all these fronts by itself. For example, 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.

We presume “purpose” should read “propose”. Please see the list of changes we proposed to the CGP, which are reproduced in the introduction to this submission. However, ours is not an exhaustive list. We think it is for the Legacy Commission to come to its own conclusions on what changes are required.

The issues highlighted by the CGP all need to be tackled, but whether they can be tackled by the Legacy Commission itself, or by itself, is doubtful. For example, we do not think it appropriate for the Legacy Commission itself to provide health care services. We think that the Legacy Commission should study the provision that already exists in all the areas identified by the CGP, identify the gaps, and any other issues not already on the list, and then make proposals for change. The Legacy Commission should have the power to appoint oversight officers where it sees the need, who should themselves have the necessary powers to make change happen. There are, of course, huge resource implications behind making most social changes, but somehow those resources must be found. Northern Ireland is broken, and needs fixing, and that is not going to be a cost-free undertaking.

12.7 In most of the areas listed by the CGP, there are already people on the ground doing excellent work. The Legacy Commission can most usefully co-ordinate that work and foster co-operation, acting as a facilitator and encourager, and, where necessary, an enforcer, as described above. However, where sectarianism is concerned, we believe the Legacy Commission, albeit it cannot eradicate sectarianism on its own, should take a very firm lead. Sectarianism, with its unfortunate tendency to spill over into racism and other hate crimes, is possibly the single biggest obstacle facing Northern Ireland’s transition to a normal, peaceful society.

12.8 BIRW has asked the Police Service of Northern Ireland (PSNI) who were the main perpetrators and who were the main victims of sectarian crime in Northern Ireland. They were unable to answer because they do not record the information.[4] In our view, until the authorities are prepared to ask and answer these questions, they will not be able to develop the necessary strategies or tools to address sectarianism. One of the many myths that obscure the reality of what is happening in Northern Ireland is that Catholics and Protestants are equally sectarian. For example, many politicians and large sections of the media portrayed the situation which arose at the Holy Cross school, which is a Catholic primary school on the edge of loyalist enclave in west Belfast, as a “dispute” between two sides, when in fact loyalists were trying to intimidate Catholics and were terrorising young children in the process, in a bid to expand their territory. The PSNI also portrayed itself as “piggy in the middle”, a smokescreen which effectively stemmed any objective examination of how effective its policing was. If all sectarian incidents were recorded and analysed, a true picture would emerge of who are the perpetrators and who are the victims. It would also enable the PSNI to determine whether those engaged in sectarianism are also engaged in racism. BIRW suspect that there are many individuals and organisations who do not want to address this question because they are worried about what the answers may be. However, it has to be addressed, and rather than leave it in many hands the Legacy Commission seems the ideal mechanism for tackling it.

The Reconciliation Forum should help to address these issues by analysing activity undertaken; considering the need for further activity; giving advice to Government and others; advising on strategies and on development and delivery of services; and deciding on priority areas of activity.

13.1 We certainly agree that these functions need to be carried out, but as the Reconciliation Forum is to consist of the Legacy Commission, NICVA and NICVS, plus others as and when required, allotting such specific work to the Reconciliation Forum will have considerable resource implications.

It sounds to us as if the functions contained in this recommendation lie more properly with the Legacy Commission. In fact, it would be very strange if the Legacy Commission did not have these functions, as it would turn it into a toothless tiger in many ways. If it is to have these functions, then the Reconciliation Forum would be duplicating a lot of its work. We would see the Reconciliation Forum as exercising some oversight on the activities of the Legacy Commission; providing a forum for co-ordination and dialogue between the three principal members; providing feedback to the Legacy Commission from victims and civil society; and acting as a think tank.

Yes. Since so many of the societal issues involve economic and social rights, which have tended to be the poor relation to civil and political rights in Northern Ireland, not least of all because of the conflict, they need a champion.

14.2 Should it be for the Chair of a Legacy Commission to champion societal issues?

They also need a powerful champion. The Chair of the Legacy Commission, who will be a person of international standing who can command the respect of the whole community, is in a good position to promote social rights without fear or favour.

14.3 How would the Chair’s champion function relate to other bodies working on societal issues, including any Reconciliation Forum?

The Legacy Commission should take the lead in ensuring that sectarianism continues to be addressed, including through setting the direction for the debate and by highlighting the contribution that all sectors of society can make.

15.2 Is the concept of a challenge function as envisaged by the Group the right way to address this problem?

Yes. Sectarianism is the elephant in the room in Northern Ireland. It is deeply engrained at all levels of society, to the point where for many it has become internalised and is therefore neither recognised nor acknowledged. Such attitudes will never change unless they are challenged.

15.3 Should it be for the Chair of a Legacy Commission to challenge sectors of society to tackle sectarianism?

Yes. In the same way that the Chair will be able to champion social issues generally, she or he is ideally placed to tackle sectarianism, precisely because s/he will be a person who can command the respect of the whole community and, coming from outside Northern Ireland, s/he will not be tainted with sectarianism her- or himself. However, as we have emphasised elsewhere in this response, the Legacy Commission can not hope to eradicate sectarianism on its own.

15.4 How would the Chair’s lead role on sectarianism relate to other bodies working on societal issues, including any Reconciliation Forum?

The Legacy Commission should engage specifically with the Christian Churches in Northern Ireland to encourage them to review and rethink their contribution to a non-sectarian future in light of their past, particularly in the area of education.

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. We also agree with recommendation 15.

16.2 We believe that the CGP were right to question the message sent by segregated education to young people that separation is alright. While an understanding of all religions should be taught to school-children, partly in order that they do not lose their cultural reference points and partly to instil religious tolerance, we question whether religion as such should be taught in schools. At the very least, parents should have the option of choosing a secular education for their children. There is a very low take-up of integrated education in Northern Ireland, with only 5 per cent of parents opting for it, but this may be because, whilst being non-denominational, integrated schools still have a strong Christian ethic. Another factor which may act as a deterrent is that children attending integrated schools can be the target of harassment, which is unfortunately inevitable in a society so dominated by sectarianism. Nonetheless, it cannot be healthy for the majority of children to be so segregated from children from other communities during the formative years of their lives.

16.3 Education has a vital role to play in Northern Ireland’s future. Although reforms to the core curriculum for schools have introduced learning about conflict, diversity and human rights at Stages 3 and 4, in our view these matters should be taught to children of all ages. Stage 3 begins at the age of eight, by which time too many children have internalised stereotypes and prejudices which then become very hard to shift. It is a matter of very great regret that human rights are not taught to GCSE or A level standard in schools, nor is there a first degree in human rights taught at any university. Northern Ireland should be the first to break the mould.

16.4 We also agree with the CGP 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.

16.5 Clearly the Christian churches (and perhaps other religious institutions as well) need to conduct a review of their own roles, but the education system itself also needs to be reviewed for the reasons outlined above.

The guidance produced by the Quigley-Hamilton working group, to eliminate discrimination against those with conflict-related convictions, should be incorporated into statute and made applicable to the provision of goods, facilities and services as well as recruitment.

Yes. If the voluntary arrangements are not working, then statutory provision is required. BIRW agree with the CGP that those with conflict-related convictions need to be better integrated into society [3.81 – 2], and that will not happen while such people are condemned to perpetual unemployment. Many ex-prisoners have renounced violence and want to contribute something positive to society, often using skills acquired while in prison. Society should not stand in their way.

17.2 Are there alternative or additional measures which could or should be taken in relation to conflict-related convictions?

We believe strongly 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.

17.3 We are also concerned about the ruling of the House of Lords in McConkey and Marks, which held that a conflict-related conviction was not evidence of political opinion for the purposes of the fair employment legislation. This was a retrograde ruling that has deprived some 3,000 former paramilitaries on both sides of the divide from fair employment protection. We recommend that the law is amended to bring those persons back under the umbrella of fair employment protection.

A new independent Unit dealing with historical cases would be created within the Legacy Commission, which would continue to review and investigate historical cases, backed by police powers. This would constitute the second strand of the Commission’s work.

The proposal to set up a completely independent investigation mechanism that will build on the work of the HET and the Police Ombudsman (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].

18.2 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].

18.3 We also agree that the Legacy Commission should have the discretion to look at post-Belfast/Good Friday Agreement cases [8:155]. Many deaths arising even to this day have their roots in the conflict, and, indeed, remain unsolved; it would be unfair to exclude such cases from investigation.

18.4 In view of the nature of the issues that the Legacy Commission will be examining, we believe that the Commissioner responsible for this work should be legally trained and should have considerable legal experience. We have in mind a judge, a Senior Counsel, or a solicitor with relevant experience of at least ten years’ standing.

18.5 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.

18.6 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 turn-over 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 instigating a Senior Investigating Officer system.

18.7 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.

18.8 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 or more 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.

BIRW have always said that this proposal 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 on Human Rights (ECHR), which protects the right to life; and was properly resourced.

18.10 We are also concerned that the CGP 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 CGP’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.

18.11 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.

18.12 If a new Unit were established, how should it determine which cases it should examine?

Unfortunately, we can see no alternative to the Legacy Commission examining all deaths arising from the conflict. Clearly, any investigation carried out by the HET or PONI should be a starting point, but the Legacy Commission will have to be take into account the differences in the remits and working methods of the HET and PONI. Some victims whose cases have already been investigated may be dissatisfied with the outcome of that investigation, while others may not wish to be re-traumatised. The Legacy Commission should therefore write to all those whose cases have already been investigated and ask whether victims were satisfied with the outcome, and whether they want to engage in any new investigation. In relation to both “old” (that is, already investigated) and “new” (yet to be investigated) cases, the Legacy Commission must recognise the right of victims to decline to engage with an investigation. However, for the sake of achieving an overview, the Legacy Commission should not allow any refusal to engage to inhibit them from investigating to the best of their ability.

18.13 Although ideally investigations should be chronological, were the Legacy Commission to simply start again from 1969 those who have been waiting for a HET or PONI investigation would be severely disadvantaged. Also, by the time their cases came to be examined valuable time would have been lost, and with it evidential opportunities. We therefore recommend that four teams be set up, to deal with each decade from the 1970s (to include 1969) to the 2000s. The teams need not be of equal size, since the majority of deaths occurred at the beginning of the conflict (although many of these have by now been investigated by HET and PONI, which may reduce the workload considerably). The HET has devised sophisticated computer software for linking cases, and each team should be trained to look for linkages. It may be advisable to have an additional small team solely dedicated to studying trends. Such a system would have the advantage of putting all victims on an equal footing, with investigations gaining from as little time lag as possible.

Historical Enquiries Team and the Police Ombudsman’s Unit dealing with historical cases. The need for these would fall away when the new Unit is established. The new Unit would build on the work they have done to date.

Yes. The HET is not Article 2-compliant because it resides within the PSNI and is not therefore fully independent, as required by the European Court of Human Rights following its judgments in Jordan and Others in 2001. PONI’s remit is too narrow to permit a full investigation, because it is limited to investigating police misconduct.

19.2 What are your views on the advantages and disadvantages of transferring to a new Unit the work of the HET and the work of the Police Ombudsman’s Unit dealing with historical cases?

The advantages are that every victim would receive the same type of investigation (currently, PONI cases receive a less in-depth examination than HET cases); that it will be possible to take a holistic view of deaths and to discern trends and patterns; and that investigations will take place within a much wider framework that has the capacity to consider all the consequences of the conflict, both for victims and for society. The disadvantages are that the learning of the HET and PONI may be lost; that there will be a time lag before the Legacy Commission gets up to speed; and that some victims may be re-traumatised by yet another investigation into the deaths of their loved ones. Some of the disadvantages can be overcome by close co-operation with the HET and PONI from the outset in order to preserve evidence and learning, and by better co-operation with NGOs, which have been monitoring the work of both the HET and PONI and are themselves experts in examining historical cases.

19.3 What view should a new Unit take of work already undertaken by the HET and Police Ombudsman?

As we have mentioned already, we would regard that work as a starting-point for the Legacy Commission. However, given the different remits and working methods of the HET and PONI, the Legacy Commission would need to review their work to ensure that those cases met the Legacy Commission’s investigation criteria and that information gleaned from those cases could be assimilated into the Legacy Commission’s overall analysis of cases.

The process of recovering information of importance to relatives (information recovery) would be separated from the investigation procedure and be subject to a distinct process within the Legacy Commission under a separate Commissioner. This would constitute the third strand of the Commission’s work.

No, we strongly disagree with it and think it ill-conceived. We believe that the HET’s model of not only conducting, so far as possible, a criminal investigation, but also answering, again so far as possible, all the questions that victims may have surrounding the death embodies the right approach. It is widely acknowledged that the likelihood of prosecutions in historical cases is slim, and BIRW believe that what is required is a truth-recovery process which encompasses both investigation and information. If the ultimate aim of the Legacy Commission is to put the past where it belongs, in the past, then all ghosts must be laid to rest. After nearly two decades of experience of working with the victims of historical cases – which are, of course, anything but historical to most victims – we are convinced that the majority of victims want above all to know the truth about what happened to themselves or their loved ones, for any wrong-doing to be acknowledged and repudiated, and for the lessons to be learned so that what happened in their case never happens to someone else. Any Legacy Commission that is established will fail in its mission if it does not heed those needs, which are common to the majority of victims.

No. What the CGP proposes in relation to answering the concerns of victims 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, albeit a distant prospect.

20.3 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 of 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.

20.4 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.

20.5 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 can not 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.

20.6 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]

We think that there is some value in such a mechanism once all possibility of a criminal prosecution or civil action has been excluded. However, for the reasons stated above we do not believe that any state agent or servant should be able to avail themselves of such protection if they have abused their office, breached public trust or the public interest, or been responsible for a serious human rights violation.

20.8 How could a Unit of the kind proposed protect the rights of people involved in the information recovery process, including those named in protected statements?

The Legacy Commission could not be expected to provide security protection to such individuals; that would be a matter for the police. However, it would be important that the Legacy Commission adopts and enforces strict confidentiality rules and strives to promote a culture in which the leaking of information to the media or others is unacceptable.

20.9 Is it more likely that people would come forward to provide information under this system?

We fear that take-up of the opportunity to provide information under a separate information recovery system would be very low.

In the fourth strand of its work, the Legacy Commission would examine themes arising from the conflict which remain of public concern, such as specific areas of paramilitary activity, or alleged collusion. This thematic examination would take place without public hearings. This would facilitate more open and frank disclosure and avoid the constant publicity of present inquiry proceedings.

The proposal for thematic investigations is 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.

21.2 The suggestion that thematic reviews will not commence until two years into the five-year time frame [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.

21.3 It is not clear to us why the Information recovery and thematic processes should be mutually exclusive [8:135]. It will be difficult if not impossible to recognise all themed cases until they have been investigated. It would also be unfair and discriminatory to exclude some cases from investigation. A thematic examination would by its very nature look at trends and patterns, rather than examining individual cases holistically.

21.4 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.

21.5 What are your views on the proposal that thematic examinations be held without public hearings?

We can see that it may be possible to gain a more rounded picture if evidence is heard in private. However, were that procedure to be adopted, it would be essential that draft reports were made available for comment to anyone with an interest in the thematic issue under consideration, to ensure that the Legacy Commission had not misinterpreted or omitted any important evidence. It should also be open to anyone with an interest to apply to the Legacy Commission for permission to give evidence or provide written submissions. All final thematic reports must be published.

21.7 Do the proposed procedures protect the rights of people compelled to give evidence and those named in evidence?

No. The lack of any right of cross-examination and the right to see documents is a recipe for disaster. Thematic investigations should, in our view, be inquisitorial rather than adversarial, but any investigative process benefits from transparency, disclosure, and the right to challenge facts, assumptions and presumptions.

21.8 To take collusion as an example, there is clearly a conflict between those who would say that no soldier, police officer, or intelligence officer should ever commit an illegal act, and those who would argue that sometimes an illegal act is necessary to save lives. The Legacy Commission not only needs to hear from both sides of that debate, but needs to hear how each sides responds to the other’s case. If neither side can see and comment on each other’s documents, the Legacy Commission may be seriously misled as to the facts.

There would be no new public inquiries. The question whether to proceed with the promised Finucane Inquiry is a matter for the British Government but the issues raised by this case could be dealt with by the Legacy Commission.

22.2 No. 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, the wholesale failures on the part of public authorities which these inquiries address, or the significance of these inquiries for many other families apart from those directly affected.

22.3 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.

22.4 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.”[5]

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 CGP has allowed itself to be used in this way.

22.5 What are your views on the use of public inquiries in relation to historical cases?

First and foremost, we would point out that the public inquiry no longer exists, following the introduction of the Inquiries Act 2005, which we believe can never be Article 2-compliant because so much power has been taken away form the judiciary and given to the executive, a view shared by many prominent judges.

22.6 Secondly, public inquiries are always mechanisms of last resort, which only come into being when all other aspects of the justice system have failed. They are therefore severely handicapped when it comes to finding the truth, although most of them succeed in doing so. The fact that they happen so long after the event means that by definition they are always dealing with historical cases. The strength of a public inquiry is that they can call those in power to account (which is why those in power dislike them so much) and they can make recommendations for the future avoidance of similar catastrophes.

22.7 Thirdly, public inquiries are a rarity. There have only ever been four inquiries in Northern Ireland, one of which was the Widgery Tribunal, which has since been wholly discredited. This is a much smaller number than have occurred over the past 40 years in England and Wales. The CGP has put forward no coherent rational for closing off this avenue in the very cases that would warrant or achieve an inquiry.

Criminal case reviews would continue to be pursued through the Criminal Cases Review Commission.

Yes. However, 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].

23.2 The CGP is right not to interfere with the role of the Criminal Cases Review Commission (CCRC) [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.

23.3 Should a Legacy Commission be given the task of monitoring the burden of inquests and criminal case reviews?

No. In the case of the CCRC, Parliament is charged with that role. In the case of inquests, the government should implement the recommendations of the Luce Review in relation to Northern Ireland, insofar as they are compatible with human rights laws and norms.

The Group is not proposing an amnesty but recommends that the Legacy Commission itself make recommendations on how a line might be drawn at the end of its five-year mandate so that Northern Ireland might best move to a shared future.

24.1 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.

24.2 Do you believe it will be possible to find a mechanism to “draw a line” after 5 years?

No. For the reasons we have already stated, we think that five years is far too short a period.

24.4 Whatever the CGP has said in its recommendation, this passage from its report speaks for itself:

“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.

support CVSNI in facilitating and encouraging the telling of stories, including by young people, about the impact of the conflict on individuals and communities; and the stories of intra-communal differences.

25.2 How do you think an enhanced mechanism for storytelling would help address the legacy of the past?

Story-telling in the context of a Reconciliation Forum would provide some degree of official recognition for the victim, and also provide the opportunity for breaking down the “hierarchy of victimhood” mentality espoused by some, by giving all stories equal validity. It should be remembered that story-telling is one of the raw materials for creating history, so documentation of stories is vitally important.

25.3 Should the existing bodies which enable storytelling remain independent or encouraged to work more closely?

We can not see why they should not both retain their independence and be encouraged to work more closely.

25.4 Should it be for the CVSNI to facilitate storytelling? How could a Legacy Commission and Reconciliation Forum support this work?

We do not understand the reasons why the CGP believes that the Reconciliation Forum and NICVA should facilitate individual story-telling while the NIVSC should facilitate intra-communal story-telling. Since both NICVA and the NIVSC would form part of the Reconciliation Forum, that would seem to be the natural home for all story-telling.

Another aspect of story-telling is fictionalisation, whether in the form of books, plays, music or films, and representation through the visual arts. The government could consider setting up a small grants programme for works that relate to aspects of the conflict and its consequences.

CVSNI should also be supported in developing the existing ways in which the conflict and its impact are remembered. This should include the development of educational projects; providing support and guidance for those facilitating remembering projects in line with certain criteria; and promoting the value of remembering across society as a means of achieving reconciliation.

However, as with story-telling, we are confused by the reasoning behind the NICVA/NIVSC distinctions made by the CGP and how and whether these proposed functions interact with the Reconciliation Forum, which encompasses both organisations plus the Legacy Commission. We think that the government needs to consider the separate and legitimate roles of NICVA and the NIVSC, recognising that each addresses different, but on occasion overlapping, audiences, and that the NIVSC is more directly concerned with victims of the conflict than NICVA. The government should then give consideration to our comments in relation to the role of the Reconciliation Forum and, once its functions are determined, draw up a clear organogram which shows how the Legacy Commission, NICVA and the NIVSC can most usefully interact within the Reconciliation Forum, and which organisation should take the lead on which issue, whether independently or under the auspices of the Reconciliation Forum, or, alternatively, whether the Reconciliation Forum as a whole should take the lead on certain issues.

26.3 What kinds of educational programmes might be developed to support work around remembering?

The Legacy Commission should seek out organisations that offer the best opportunity to reach mixed audiences, and concentrate on the delivery of education programmes through those organisations or through public events open to all. While schools remain so highly segregated, as indeed are so many communities, remembering in those contexts may just reinforce sectarian attitudes. While there is a place for children asking their older relatives to record their memories, and for people from “the other” community sharing memories with one another, something more radical is required if a common understanding of the history of the conflict is to be achieved. Here again, the arts may have a role to play. It must also be remembered that some of the key players in some of the conflict’s history, such as British soldiers and British civil servants, may no longer be in Northern Ireland and their memories need to be captured also.

Future Storytelling initiatives should be developed taking account of certain criteria.

27.2 What steps might future initiatives take to meet the goals set out by the Group, particularly in terms of ensuring that ‘story hearing’ as well storytelling takes place?

Full support should be given by government, the private and voluntary sector, including the churches, to the continuation of the annual Day of Reflection, initiated by Healing Through Remembering, on 21st June each year. Consideration should be given to renaming the event a Day of Reflection and Reconciliation.

28.2 Do you think such a day should be one of private reflection or should there be public statements by key organisations and statutory bodies?

28.3 We think that it should be up to each individual and organisation to decide how best to mark the Day.

Each year, on or around the Day of Reflection and Reconciliation, the First Minister and Deputy First Minister should together make a keynote address to the Northern Ireland Assembly and invited guests, reflecting on the past in a positive way and confirming their commitment to lead Northern Ireland society towards a shared and reconciled future.

29.2 Which other mechanisms would you propose to reflect effectively upon the past?

Again, we think that it should be up to each individual and organisation to decide how best to do this.

The Group therefore recommends that the Commission should, at the end of its work, challenge the people of Northern Ireland, including political parties and whatever remnant or manifestation of paramilitary groups remain, to sign a declaration to the effect that they will never again kill or injure others on political grounds.

No. 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 or members of the security forces, 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? Furthermore, the vast majority of people in Northern Ireland have never killed or injured anyone on political or any other grounds. If the Legacy Commission is successful in its work, there will be no need to challenge people in this way. The whole point about moving on is that people move. Expecting people to sign such a declaration will seem irrelevant to many and an insult to the intelligence of others.

A shared memorial to remember conflict in and about Northern Ireland should be kept under consideration by the Reconciliation Forum and criteria should be observed, in working towards a shared memorial conducive to reconciliation. The Legacy Commission should, at the end of its five year lifespan, make recommendations to Government in this regard.

There is, though, strong support for the notion of “never again” on all sides of the community. Perhaps when the time is right, 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.

In principle, yes, but they made need to be reviewed if the Legacy Commission’s work succeeds and times have moved on.

24.1 Do you believe that any of the Consultative Group’s proposals will have a positive impact on people within any of the section 75 categories?

Except where we disagree with the proposals, we think they should have a positive impact on all members of Northern Ireland society.

24.2 Do you believe that any of the Consultative Group’s proposals will have an adverse impact on people within any of the section 75 categories?

If the idea of a declaration is adopted, it will have an adverse interest on the freedom of expression of persons of certain political opinions. If people whose cases are dealt with thematically are deprived of information recovery, especially if, as we recommend, information recovery and investigation are merged into one truth-recovery process, then persons in all the s. 75 categories would potentially be adversely affected. If the recognition payment is implemented, then persons with disabilities would be adversely affected.

24.3 If so, are there any measures that should be implemented to mitigate against adverse impact on people in the section 75 categories?

24.4 Will any of the proposals affect the promotion of good relations between persons of different religious belief, political opinion or racial group?

We hope that this exercise will not be seen as a substitute for carrying out a full Equality Impact Assessment on the government’s eventual proposals.

[1] henceforth, references to the CGP’s report will be rendered thus:

[chapter: page(s)]

[2] Recommendation 31, which concerned the Bill of Rights Forum, has been

omitted because it is no longer relevant

[3] Annoyingly referred to as “society” throughout the report, and replicated in

this consultation

[4] Ibid

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

23 September, 2009 |