Relatives for Justice made a comprehensive submission to the Council of Europe’s Committee of Ministers as they considered the British Government’s response to the ongoing violations of victims rights to truth and effective investigation.
Rule 9 submission to the
Committee of Ministers of the Council of Europe
February 2021
Execution of Judgments of the European Court of Human Rights
Group of cases:
McKerr v UK, 2001
Jordan v UK, 2001
Kelly and others v UK, 2001
Shanaghan v UK, 2001
McShane v UK ,2002
Finucane v UK, 2003
Hemsworth v UK, 2013
McCaughey and others v UK, 2013
Relatives for Justice is recognised by the Inland Revenue as a Registered Charity NIC101311;
And a Company Limited by Guarantee NI44611
Introduction
Relatives For Justice (RFJ) is a human rights’ framed victim support NGO that provides holistic support services to the bereaved and injured of all the actors of the conflict on an inclusive and non-judgemental basis. We also seek to examine and develop transitional justice and truth recovery mechanisms assisting with individual healing, contributing to positive societal change, and ensuring the effective promotion and protection of human rights, social justice and reconciliation in the context of an emerging participative post-conflict democracy.
As part of our engagement with human rights bodies, RFJ has made several submissions to the Committee of Ministers (the Committee), most recently in November 2020. The current submission seeks to provide a brief update of developments and a general response to the document submitted by the UK Government on the 25th of January 2021, for consideration at the 1398th meeting in March 2020. However, it is noteworthy that updates contained herein do not change the overall situation of delay and prevarication by state agents that have been mentioned submission after submission.
Only consistent international scrutiny is likely to encourage the UK to implement its international human rights obligations in respect of legacy issues. We therefore welcome that the Committee is maintaining its interest and pursuing its mandate by maintaining regular scrutiny of the UK’s record. Without this, the UK Government’s own approach to dealing with its actions would undermine the rule of law and respect for international human rights.
RFJ hopes that the Committee finds the following information of assistance in its continued monitoring of the UK Government’s obligation to respond to the findings of the European Court in the variety of cases from this jurisdiction.
Summary of developments since last submission
- UK Government’s decision not to carry out a public inquiry into the murder of solicitor Patrick Finucane.
- Information submitted by the UK Government regarding their “action plan” now described as the legacy policy reform.
- RFJ open letter signed by over 3,500 bereaved relatives, urging the Irish and British Governments to implement the mechanisms agreed in the Stormont House Agreement.
Individual measures: the case of Patrick Finucane
On the 30th of November 2020, after an unnecessary and unjustifiable delay of almost two years, Secretary of State (SoS) Brandon Lewis finally made a statement in the House of Commons regarding the decision of the UK Government on how they intended to conduct an Article 2 compliant investigation into the murder of Patrick Finucane, following the judgment of the Supreme Court in February 2019. The SoS made the disappointing decision not to carry out a public inquiry into Finucane’s case “at this time”, in order to enable a police review process and investigations by the Office of the Police Ombudsman (OPONI) to proceed. Shortly after his statement, however, the Chief Constable of the PSNI, Simon Byrne, and Police Ombudsman Marie Anderson contradicted the the SoS’ statement, confirming that, in fact, there were no ongoing investigations regarding the murder of Patrick Finucane within their respective caseloads.[1]
Furthermore, former Police Ombudsman Nuala O’Loan dismantled the assertion that the OPONI would ever investigate the case and that this would address the extensive and grave human rights breaches in relation to the state killing of Pat Finucane. She explained that the Police Ombudsman simply does not have the powers to do that.
“The work of the Police Ombudsman, which was referred as a consequence of de Silva, relates to other terrorist murders carried out in Northern Ireland. When I was Police Ombudsman, I knew that I could not investigate matters surrounding the murder of Patrick Finucane because I did not have the powers. That continues for the current police ombudsman. She can only investigate the activities of police officers. She has no remit to investigate, with a view to prosecution, loyalist paramilitaries, the staff of the Ministry of Defence or the Security Service—that is what is required in this case. Moreover, the police ombudsman does not have the resources to do the work she should be doing; she is grossly under-resourced.”[2]
O’Loan also advocated for the establishment of a public inquiry into the murder of Patrick Finucane, as well as the implementation of the Historical Investigations Unit (HIU) set out in the Stormont House Agreement (SHA) for all the other outstanding cases of the conflict.
One might think that the argument presented by the SoS to justify the decision not to carry out a public inquiry into the murder of Finucane was the result of an error, a misunderstanding or sheer incompetence, but the response of the UK Government to the Committee of Ministers submitted on the 25th of January 2021 indicates otherwise. Indeed, the UK Government’s communication includes the assertion of the SoS regarding the (non-existent) investigations within the PSNI and the OPONI, but fails to clarify the reality and situation provided by those two bodies regarding the Finucane case – that is, that they are not conducting nor planning to conduct any Article 2 compliant investigations into the murder of the solicitor. To add insult to injury, the UK Government submits that “all necessary steps are being taken to ensure compliance with both the domestic courts’ and Strasbourg Court’s decisions in this case”.
General measures
Ten months after their unilateral decision to withdraw from the SHA, the UK Government have at last started offering some insight into their new “plan of action”, which they have described as the ‘legacy policy reform’ in their last communication submitted for consideration of the Committee. The reasoning for such reform is based on an inexplicable interpretation of the response to the Consultation ‘Addressing the Legacy of the Past’ carried out by the British Government in 2018. The consultation received over 17,000 responses and had overwhelming cross-community support for the HIU and opposition to an amnesty.[3]
The UK Government’s interpretation of those responses, however, is that “it was clear from this feedback that further work was needed to address the legitimate concerns of those who responded to the consultation”. In other words, the responses to the consultation did not fit the agenda of the NIO and the UK Government – that is, to ensure that there is little to no accountability for State crimes – and the British authorities decided to make a U-turn and to develop a plan to end the “cycle of investigations”.
According to the document, the reform “focuses on reconciliation, delivers for victims, and ends the cycle of investigations”. It is however difficult to understand how the UK Government intends to deliver for victims while violating their rights to truth and justice by stopping investigations, which would consequently violate Article 2 and the rule of law. It would also represent a failure to implement the decisions of the European Court of Human Rights. As RFJ have warned submission after submission, this so-called reform is simply a further attempt to perpetuate the impunity for British soldiers and a virtual amnesty for those who colluded with paramilitary organisations. Its ultimate aim is to prevent the truth from emerging about the British authorities’ role in the conflict.
Moreover, on the 14th of December 2020 Brandon Lewis said he would extend legislation equivalent to the Overseas Operations impunity Bill to the North of Ireland. This would ensure British State forces, and by extension their agents, will be protected from prosecutions; thus dashing the hopes, and rights, to proper investigations to establish accountability.
Meanwhile, the approach of British legal authorities remains one of delay in relation to discovery of information, even to coroners’ inquests. On 29th January 2020, the Irish News reported that coroner Paddy McGurgan expressed dismay at the delays – and the excuses deployed – by state lawyers in the case of Stephen Geddis, a 10-year-old boy killed in 1975 by a British soldier who fired a plastic bullet at him. Coroner Paddy McGurgan dismissed the notion that the pandemic is a reason why documents cannot be processed as maintained by lawyers for the Ministry of Defence (MoD) and insisted that a digital method of dealing with the material should surely be possible. After all, everyone else has adapted; surely the MoD could do so too.
This approach, however, is characteristic across all mechanisms by security authorities in relation to legacy investigation, particularly those that seek to meet Article 2 requirements, as we have reported in previous submissions.
It is also noteworthy that the British Government keep talking about finding a ‘consensus on a way forward’, but this ultimately translates into: (1) those subject to investigation (former soldiers, police, and intelligence operatives) complain about being investigated, thus preventing progress and covering wider systemic practices that led to multiple deaths, and (2) that under the law and the Convention, this approach displaces completely the rights of those bereaved and injured. It is absolutely ludicrous that the right to an independent effective investigation for the next of kin of those killed is somehow balanced out by the fact that those responsible for the deaths of their loved ones might somehow find it ‘uncomfortable’ or that their ‘official’ version of events is open to scrutiny. The UK Government continually seeks to diminish the rights of those bereaved whilst elevating those of the perpetrating forces under their control. We would urge the Committee to underline the UK’s obligations under the Convention, which are first and foremost the rights of the next of kin to effective remedy.
Just days before the submission to the Committee of the “plan of action” of the UK Government, over 3,500 bereaved relatives of people killed during the conflict signed an open letter to the British and Irish Governments requesting the implementation of the SHA and its agreed mechanisms for truth recovery, post-conflict transition and reconciliation. The letter, which is attached to this submission (Annex 1), was published in the Irish News and the Andersonstown News in Belfast, as well as the Irish Echo in New York, on the 21st of January 2021.
Approximately half of those relatives who put their names to this letter are under the age of 35. This is the current and future generation, determined that the past will be resolved and accounted for. This speaks to the transgenerational impact within families and communities of unspeakable and unresolved truths and is a clear message that the past is not going to be fudged or wished away.
Accounting for the past is a prerequisite to establishing a secure future for all our people across this island and between the islands of Ireland and Britain.
Fundamental to this is the promotion of human rights, justice and equality for all and an adherence to the rule of law. Under domestic and international law, the bereaved have legal rights to effective remedy for the killings of their loved ones and the British Government is denying these rights.
As the dignified call of thousands of signatories to the open letter proves, the past is ever present. The demand that the past be dealt with is self-evident. Avoidance and denying rights is not sustainable. There is no different way forward. The only way forward is for full implementation of the legacy mechanisms agreed at the SHA.
[1] BBC, ‘Pat Finucane inquiry decision an ‘insult’ to family’ accessible at https://www.bbc.co.uk/news/uk-northern-ireland-55144268 (01/12/2020).
[2] Baroness Nuala O’Loan in UK Parliament, accessible in: https://hansard.parliament.uk/Lords/2020-12-02/debates/9C663D37-CE2E-4835-AE94-88C11D63DFA6/PatrickFinucaneSupremeCourtJudgment (30/11/2020).
[3] NIO, ‘Addressing the Legacy of the Past: Analysis of the Consultation Responses’ published in July 2019 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/814805/Addressing_the_Legacy_of_the_Past_-_Analysis_of_the_consultation_responses.pdf).
