This morning following the significant legal victory of the families affected by the McGurks’ Bar bombing our Director Mark Thompson was asked really important and relevant questions by the families at the court. These questions centred on the legal processes of the past number of years surrounding the requirement for independent investigations.
When Mark returned he wrote the following piece to hopefully begin more informed conversations on investigations and on the Stormont House Agreement.
The Bottom Line
On our website we have encouraged families to read the policy paper released on Wednesday of this week by the British government on the proposed investigative mechanisms for the Stormont House Agreement (SHA); the HIU, ICIR, OHA & IRG.
A copy of the policy paper is located on the website for easy access. Families should note questions and concerns and we will do our best to address these. Where we are not able to answer we will seek to get clarity and answers for you.
It is our understanding that draft legislation for the Stormont House Agreement (SHA) will be presented to the British parliament on Monday October 12th.
This will be the first opportunity for us all to see the colour of their money. The legislation will take approximately 8 months to come into effect as law.
There has been a lot of inaccurate commentary, including some mischievous making, which is unfortunate. Families are asking about Article 2, previous agreements that failed, and a kind of chronology of events that has got us to here and what is required.
What is an Article 2 investigation?
- The British government is signatory to the European Convention on Human Rights (ECHR), incorporated into domestic legislation via the Human Rights Act 1998, & to the UN’s Independent Covenant on Civil & Political Rights (ICCPR);
- This means that the British government has very clear domestic and international legal obligations to conduct investigations into killings during the conflict independently, impartially, thoroughly, and promptly concerning deaths caused by the State or where the State is alleged to have been involved in i.e. collusion – these are often referred to as Article 2 cases. Article 2 of the Convention being the Right to Life and where life is taken then the above investigative process must in law accordingly follow;
- During the conflict the British government did not adhere to any of these legal obligations concerning State killings by the RUC, British army, and where collusion occurred in killings and attacks.
- So as the main political parties continue to negotiate in the current talks it’s very much worth bearing mind that irrespective of the outcome, and whether or not Theresa Villiers seeks to play games and brinkmanship, the British government has the legal responsibility for addressing the past. Not the political parties.
The Article 2 battle by families
- A series of cases, supported by RFJ and represented by the CAJ and Madden & Finucane Solicitors, were taken to the European Court of Human Rights (ECHtR), McKerr, Shanaghan, Jordan, Kelly &Others, in 2000. In May 2001 the court unanimously found that the UK government violated the Article 2 rights of the bereaved in denying them an effective investigation into the killings.
- The judges concluded the original RUC ‘investigation’ lacked independence, inquests failed to have effective powers to compel those responsible for killings, including examining the circumstances surrounding the killings i.e. prior information, planning, intelligence, etc. that may have averted the need to take life, the failure of the prosecution service to make public why they failed to prosecute soldiers and policemen involved in killings, and a failure to investigate collusion. The refusal of legal aid to families was also criticized;
- The court passed their judgment to the Committee of Minister for the Council of Europe that has since then been tasked with ensuring the British government complies with the law by putting into place a proper investigative mechanism. This process continues today;
The British government response to Europe
- The British government presented the PSNI’s HET, a reformed inquest process, and the office of the Police Ombudsman as meeting their legal obligations. This was known as the ‘package of measures’. They also argued that in cases where they paid compensation, via civil actions taken for damages, that this too constituted compliance. The latter was rejected;
- For our part RFJ challenged the HET and supported two families to seek leave by way of judicial review exposing investigative bias when reviewing killings by the British army and involving collusion;
- The Committee of Minsters initially accepted that the HET could potentially meet the legal obligations;
- RFJ also made submissions to the Committee of Ministers raising our concerns and those of families about the flawed nature of the HET;
- It was accepted that reformed inquests could meet Article 2 and that the Ombudsman also could.
British government rearguard action
- However, the Ombudsman faced serious difficulty in that resources were then withheld hampering its effectiveness. There were also serious concerns as to interference by serving and former police officers including the re-writing of reports that initially found collusion. Al Hutchinson resigned and investigations into conflict related deaths were suspended;
- Inquests were also deliberately under-resourced to reduce their effectiveness curbing their ability to get to the facts. The PSNI also set up a Legacy Support Unit (LSU) comprised of former RUC Special Branch officers to assess and determine requests by coroners for information from the police about killings. This is clear conflict of interest and a blatant violation of Article 2;
- The strategy by the PSNI, the MoD, and the British government is to starve the current investigative processes rendering them ineffective; a lack of money masking their intentions;
HET eventually exposed
- The Policing Board forced the Chief Constable, Matt Baggott, to call in the HMIC to inspect the HET. It found the HET to be ‘illegal’ concerning it’s role in reviewing killings by the British army including that it operated a policy to treat such killings with ‘less rigour’ than other killings. In December 2013 the HET was abolished;
New Ombudsman takes on the challenge for human rights
- Michael Maguire was appointed as the new Police Ombudsman and he established new structures to conduct proper investigations;
- The PSNI sought to refuse Dr. Maguire and his investigators access to intelligence reports that were key to scores of killings and in an unprecedented move he took the Chief Constable, Matt Baggott, to court;
- The new Chief Constable, George Hamilton, did not contest the legal challenge and provide the intelligence to the Ombudsman;
- The Department of Justice then cut funding to the Ombudsman;
Political solutions to independently investigate the past rejected
- Throughout this time period we have also had Eames/Bradley, Hass/O’Sullivan, and now the Stormont House Agreement. All have sought to examine a way to address the past via an investigative mechanism;
- RFJ, families, and other NGO’s have all been engaged in this ongoing battle for human rights and compliant investigative processes;
Stormont House Agreement – a new challenge?
- If SHA delivers then well and good – but it must be fully Article 2 compliant. And no doubt there’ll be battles ahead;
- It could well be the best chance yet to get this right for families in their lifetime;
- So when there is misinformation and mix, as there has been lately, it’s worth bearing in mind the complex battle we’re all involved in and the forces out there at work against our objectives, our human rights;
- Bottom line is the British government must deliver and RFJ and families will continue to battle them in Europe and the local courts if needs be. Just as this morning the families of McGurk’s did and during the week the Loughgall families did;
- Families, despite the obstacles placed in their way, are making headway and this worries those who seek to shield the truth;
- We are at a critical juncture;
The European Convention is still on the side of families
- The Committee of Ministers is still waiting for the British government to submit an Article 2 compliant investigative mechanism. The British government has indicated that the SHA will meet their obligations;a
- It’s also worth bearing in mind that because the Human Rights Act is incorporated into domestic law that any legislation going through the British parliament must also be human rights compliant – so it’s over to you Theresa Villiers & Co. Meet you legal obligations and stop the antics.