Publications

Advice on Northern Ireland Troubles (Legacy and Reconciliation) Bill to the CoE Committee of Ministers

Date produced August 2022.

Below is a summary of the recommendations.

You can also download the full document through the links provided.

The Northern Ireland Human Rights Commission recommends:

1.4 The NIHRC concludes that the fundamentals of the entire draft of the present Bill require immediate and thorough reassessment, which should take place through meaningful engagement. The result should be victim-centred and human rights compliant, the NIHRC is of the view that this is not delivered by the present Bill.

2.23 The NIHRC is gravely concerned that the current draft of the Bill renders the ICRIR incapable of discharging the State’s obligations to undertake investigations that are in line with the rule of law, transparent, ensure accountability and provide an effective remedy.

2.32 The NIHRC advises that the extent of the Secretary of State’s influence and involvement across the ICRIR’s operations proposed by the current draft of the Bill raises serious concerns as to whether the ICRIR’s work can be sufficiently independent and impartial, as required by human rights standards, including Articles 2 and 3 of the ECHR.

2.46 The NIHRC advises that a thorough investigation requires that inquiries be capable of establishing the facts, identifying the perpetrator and follow all lines of inquiry. It is the NIHRC’s view that this cannot be achieved by conducting a light-touch review or producing a basic historical record as proposed within the current draft of this Bill.

2.49 The NIHRC advises that the arbitrary distinction between reviews and the historical record within the current draft of the Bill creates an unjustified disparity between cases, which risks further diluting the UK Government’s adherence to its procedural human rights obligations.

2.56 The NIHRC advises that investigations should be of the State’s own motion and it is right that the current draft of the Bill enables reviews to be requested by State agents. However, the NIHRC stresses that the resulting review must equate to an Article 2 ECHR compliant investigation, particularly regarding thoroughness and independence. The NIHRC is of the view that this is not delivered in the current draft of this Bill.

2.68 The NIHRC advises that the requirement to conduct reasonably prompt and expeditious investigations cannot be a reason for legislation to be rushed through without meaningful consultation or the support of victims and survivors. Additionally, the speed of the process is peripheral if the other aspects of the procedural obligations of the right to life and freedom from torture are not met, particularly that investigations are thorough, independent and impartial. That said, immediate concrete steps should be taken to address these issues for the purpose of progressing offences that are awaiting a human rights compliant investigation.

2.82 The NIHRC advises that the Bill should require that the ICRIR publishes all its reports, with limited exception. There should be a structured approach towards what is or is not included in a draft and final report. Where exceptions are in place they must be lawful and proportionate and include safeguards that ensure these are not applied arbitrarily and that the commitments aimed at enabling effective public scrutiny are not illusory.

2.95 The NIHRC advises that, considering human rights jurisprudence, the proposed definition of ‘close family member’ within the current draft of the Bill is too narrow. It should extend to grandparents, aunts, uncles, nieces or nephews.

2.96 The NIHRC advises that, considering human rights jurisprudence, the definition of ‘other family member’ within the current draft of the Bill should take account of situations where it may be appropriate for a non-familial person, with close personal links and who provides care for a victim to seek remedy on the victim’s behalf.

3.3 The NIHRC advises that a human rights compliant approach requires that the Bill should adopt a broad approach to determining what offences fall within the ICRIR’s mandate. There should be flexibility built in to ensure the individual circumstances of each potential case and broader human rights commitments, including the investigative obligations attached to the right to life and freedom from torture, can be considered and are used to inform the determination of whether a case should be considered by the ICRIR.

3.11 The NIHRC advises that there should be an assessment of whether all previous investigations into Troubles-related offences were human rights compliant. The NIHRC is concerned that the current draft of the Bill does not include a mechanism to assess whether previous investigations were human rights compliant, and if not, to determine that they should fall within the ICRIR’s remit.

3.17 The NIHRC advises that to justify the proposed end date of 10 April 1998 a review confirming that offences after this date have been investigated or have the option of being investigated in line with human rights obligations is required.

3.19 The NIHRC is gravely concerned that the benefit of a broad temporal scope within this Bill will be ineffective in practice due to this Bill’s general incompatibility with the ECHR, the UK Supreme Court’s ruling in McQuillian, McGuigan and McKenna [2021] and the arguably non-compliant approach proposed towards positive obligations in the Bill of Rights Bill.

3.24 The NIHRC welcomes the recognition within the current draft of the Bill that the NI conflict extended beyond NI. However, the NIHRC is gravely concerned that the ICRIR’s mandate and approach to investigations as proposed by the present Bill will significantly hinder the ability for other States to satisfy their procedural obligations regarding the NI conflict.

3.35 The NIHRC advises that the proposed provisions within the current draft of the Bill relating to the retention and use of biometric data are largely in line with human rights standards. However, to ensure proportionality as required by human rights standards, the present Bill should include a requirement that biometric data retained for the purposes of ICRIR’s work must be relevant to that work.

4.12 The NIHRC is very concerned by the lack of accountability, equality and public scrutiny within the proposed immunity scheme as set out in the current draft of this Bill. The NIHRC remains of the view that an immunity scheme such as that proposed by the current draft of the Bill is not lawful and is not human rights compliant.

4.19 The NIHRC advises that, while welcomed, excluding Troubles-related sexual offences from the immunity scheme is insufficient to overcome its broader concerns about the immunity scheme proposed by the present Bill.

5.8 The NIHRC is gravely concerned that the immediacy of the proposed changes to a victim’s access to justice within the current draft of the Bill closes off any pursuit of justice outside of the ICRIR and is therefore incompatible with human rights and the Belfast (Good Friday) Agreement.