Committee on the Administration of Justice
Opening Statement to the Joint Oireachtas Committee on
Implementation of the Good Friday Agreement 24th September 2015
About CAJ
The Committee on the Administration of Justice (CAJ) was established in 1981 and is an
independent non-governmental organisation working for human rights and affiliated to the
International Federation of Human Rights (FIDH). CAJ takes no position on the constitutional
status of Northern Ireland and is firmly opposed to the use of violence for political ends. Its
membership is drawn from across the community.
The Committee seeks to ensure the highest standards in the administration of justice in
Northern Ireland by ensuring that the government complies with its responsibilities in
international human rights law. Our specific focus is on those human rights issues which are
directly relevant to conflict and peace. This includes relevant economic, social and cultural
rights as well as civil and political rights. We are concerned to combat impunity for
violations in the past, guarantee non-recurrence by working for contemporary
accountability, promote a rights based framework for the exercise of the freedoms of
expression and assembly, advocate the application of the fundamental principles of equality
and promulgate the benefits of a rights based society.
The current situation
To date there has been no overarching legacy commission or transitional justice mechanism
to deal with the legacy of the Northern Ireland conflict. Instead a number of criminal justicesystem mechanisms examine unresolved conflict-related deaths. Such mechanisms were
largely prompted by a series of Article 2 ECHR ‘right to life’ judgments in the European Court
of Human Rights against the UK. This led to the UK Government adopting a ‘package of
measures’ it argued would meet its human rights obligations for effective, independent
investigations. The package included changes to the inquest and prosecution systems. It also
included reference to public inquiries, the PSNI Historical Enquiries Team (HET) and the
Police Ombudsman’s role in investigating the past. Serious limitations however have
become apparent in relation to these mechanisms which have militated against their
capacity to provide accountability for human rights violations. Elements of the package have
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been shown not to have the necessary independence, effectiveness or impartiality to
investigate state actors. Even those mechanisms which have been independent have faced
limitations on their powers, delay or obstruction in undertaking their work.
Five years on from the 2009 Eames-Bradley proposals the 2013 Haass-O’Sullivan Proposed
Agreement envisaged a single investigative mechanism, the Historical Investigations Unit
(HIU), to investigate unresolved deaths. The December 2014 Stormont House Agreement
involved a commitment to set up the HIU as an independent body and to establish other
institutions to deal with the past. The proposed institutions have the potential to provide
effective redress, yet the efficacy of such a mechanism will lie in the detail of how it
operates. It is this which will determine whether it will succeed in conducting human rights
compliant investigations and in achieving accountability.
This is why CAJ has cooperated with academics from Queen’s and Ulster Universities and
individual experts to produce a Model Bill and Explanatory Notes that would implement the
SHA in a human rights compliant manner. As human rights activists we felt the responsibility
to put forward constructive solutions, not just sit on the sidelines criticising. These
documents were launched in Belfast on 16th September after a process of continuing
consultation with civil society, the UK Government officials drafting legislation and officials
from the Department of Foreign Affairs. The Model Bill also contains a suggested draft of
the Irish-British Treaty which will be necessary to establish the Independent Commission on
Information Retrieval (ICIR). Copies of these documents are available to the Committee.
Key issues to be considered in the implementation of the SHA
Also available to the Committee is a briefing document we have produced on the key issues
to be considered in the implementation of the SHA. I will just pick out some of the main
points here.
Historical Investigation Unit
In many ways this is the key institution proposed by the SHA in that it will provide a robust
investigative mechanism that could result in criminal prosecutions and should mostly meet
the Article 2 obligation of the UK Government to properly investigate deaths occurring
during the conflict. However, there are a number of vital issues which must be dealt with if
the institution is to be effective and in line with human rights law and standards.

It must have full, unfettered and unfiltered access to all relevant archives and
records, whichever agency holds them. The UK Government has committed to full
disclosure to the HIU; however we are concerned that elements of the discredited
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Legacy Support Unit of the PSNI may still be involved with the intelligence archive in
some way or, worse, transferred into the HIU. The HIU investigators would also need
to have full access to materials held by other police forces, the Security Service and
the Ministry of Defence, wherever they are located.

Where there is no prosecution, the information provided to families will have to be
redacted to avoid any concrete threat to the life of any person. However, we are
concerned that the UK Government will seek a veto on the grounds of the undefined
concept of “national security,” which would be an unacceptable restriction on the
right to truth.

In order to be Article 2 compliant the HIU must be independent. That means, first,
that there has to be no connection between those investigating and those who
might be investigated; in our view this means that no former RUC, British Army or
paramilitary personnel should be involved with the organisation in any way. Second,
the governance of the HIU must be independent. The SHA says the HIU should report
to the Policing Board, which is, in our view, an independent body but we are
concerned that there is still scope for government control through the manipulation
of budgets and departmental interference. Our Model Bill contains provisions to
avoid this and we would want to see similar mechanisms in the actual legislation.
Independent Commission on Information Retrieval
Some of the key issues here are:

Ensuring ICIR’s independence will be vital to its credibility and likelihood of being
able to successfully retrieve information for victims’ families. A key component of
independence relates to the appointment and tenure of the Chair and other
Commissioners. In our model bill we have sought to create robust eligibility criteria
to ensure that appropriately experienced and respected persons are appointed to
the Commission, that they have security of tenure and that in line with international
best practice standards at least two of the commissioners are women.

To fulfil its broad range of functions, our model bill stipulates that ICIR be
empowered to compel the production from public authorities of any information
that it requires in the exercise of its functions. To ensure the confidentiality of the
information received, we further stipulate that the Commission cannot be compelled
to disclose information received to criminal justice or intelligence agencies.
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
The SHA is silent on the fate of the archives built up by the ICIR but there may be a
preference for destroying all information gathered by the ICIR upon completion of its
work. Our proposals instead make arrangements for the archives to be held securely
and confidentiality for 50 years. We felt this was necessary as the ICIR has the
potential to gather a wealth of information that may be useful for understanding
Northern Ireland’s history in the generations to come.

The ICIR will be an international, cross-border body and our Model Bill also includes
a draft of the treaty between the two sovereign governments.
Oral History Archive

Ensuring the Archive is “independent and free from political interference” is key. We
have thus proposed an Executive Board consisting of three directors, assisted by an
independent Advisory Board and a Secretariat. The necessary skills and attributes for
office holders are set out in some detail.

Buy-in to the process from a suitably broad range of contributors cannot and should
not be taken for granted. The OHA will need to embark on extensive and meaningful
consultation in Ireland, North and South, and in Britain to raise awareness, test
interest, avoid duplication, build trust and secure participation. To avoid a narrow
and inward-looking approach we have tailored the governance structure to ensure
meaningful participation and input from agencies in the Republic of Ireland and
elsewhere.

In the interests of judicious use of public funds it is at any rate vital that this new
Archive should take full account of existing materials, networks, resources and
expertise. We emphasise that relations with existing groups must be underscored by
a spirit of mutually beneficial partnership.

There is currently no central sound archive for the deposit of oral records of the
conflict in Ireland, North and South. An opportunity now presents to create a central
dedicated sound archive with the resources necessary to safeguard and preserve
contributions (new and existing) for future generations.

Opportunities must be created to enable people to tell their story in full and in
context and furthermore to “share experiences and narratives related to the
Troubles.” We thus emphasise that the first assumption is that material accruing to
the OHA should be made freely and publicly available.
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Implementation and Reconciliation Group

The IRG is set out in paragraphs 51-54 of the SHA with a mandate to: “oversee themes,
archives and information recovery”, to commission a report on themes from independent
academic experts; to promote reconciliation and to consider statements of
acknowledgement. Members will be appointed by the NI political parties and two
governments. To date the UK government has indicated the IRG will NOT be set up in
legislation. This risks the detail of its establishment and its powers and duties becoming a
political football down the line. Our Model Bill would establish the IRG in legislation and set
out its powers in detail.

The SHA does not set out proposed themes for reports but provides that the evidence base
for themes be referred to the IRG from the other SHA legacy mechanisms. We have provided
for this in our Model Bill, along with criteria for the appointment of academic experts, and
provisions on evidence base which such experts can draw upon (including confidential
material) in compiling their research. Unless such matters are set out in statute it is difficult
to see how the IRG work could maintain its independence and effectiveness.
Legacy Inquests

Legacy inquests have been beset by a lack of resourcing and endemic delays linked to state
agencies failing to disclose documents to them. The SHA commits to inquests continuing as a
separate process to the HIU, but also Stormont taking steps to improve their effectiveness
and independence, in accordance with the requirements of the European Convention on
Human Rights. The Model Bill has reflected this with explicit provisions for the HIU to share
information with and assist with disclosure to the Coroner, and also to provide investigative
services for the Coroner.

However, endemic delays and problems have continued. The resourcing issues hampering
legacy inquests have not been dealt with; long sought investigative support to the Coroner is
still not in place; the NI Minister for Justice has refused a request from the Policing Board to
call in HM Inspector of Constabulary to examine the PSNI role in delays in disclosure; and no
effective plan appears in place to take forward legacy inquests following the retirement of
the senior coroner.
The way forward
We understand that the UK legislation will be laid before Parliament in October. We are
convinced that this process gives a major opportunity to deal effectively with the legacy of
the past. However, the establishment of a mechanism that fails the human rights test will
also fail the test of confidence of victims and broader society. That would be worse than
useless. We are committed to campaigning for a human rights-compliant process – we will
campaign against one that does not come up to that standard.
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