Neil Faris: Government is set to repeat mistakes of Stormont House deal on legacy, by promoting ‘victim-centred’ rather than even-handed justice

They also emphasised that we should all be troubled that during the past 25 years the grief and anguish of victims has persisted because of our communal failure to resolve how best to proceed to address this legacy.

The first article on Wednesday (scroll all the way down for a link to it) explained that the focus of the article series is not on the controversial proposals for amnesty or conditional amnesty which have to date been the subject of the bulk of the debate and scrutiny.

Then the second article in this series yesterday (scroll all the way down for a link to it) sought to draw urgent attention to the proposals that the new Investigations Commissions should have excessive powers (as set out in the first article) over individuals.

This third and final article is the point at which consideration must be given to ‘best guidance’ as to how an investigatory process should be properly carried out where police powers are not being exercised and the aim is to issue a report with, where necessary, findings of ‘fault’ or ‘misconduct’ against any individual.

In particular, in the context of the Legacy Bill, what is the extent of protection of individuals when the commissioners are carrying out investigations to produce their reports? The bill contains no reference to best practice or guidance to be followed by those exercising such reporting powers.

Best practice was set out in a report by Senior Counsel in London which was presented to a Parliamentary Committee in 2016. The report suggested various points of ‘good procedure’ for those carrying out investigations. One of their suggestions was a ‘Guideline K’ applying to those engaged in investigations which may lead to a finding of fault or misconduct on the part of an individual.

In summary:

• Anyone under investigation should be given advance notice of the matters in which the inquiry is interested;

• Then the person under investigation should be provided in advance with the main documents about which questions may be asked;

• The person under investigation should also be provided in advance with a summary of any adverse evidence or allegations against the person; and

• If such adverse evidence or allegations is obtained by the investigators after the person has given evidence then he or she should be invited to give supplementary evidence in relation to the new adverse evidence or allegations.

These are straightforward procedures which can and should be readily adopted by any body or inquiry (such as the commissioners) before they proceed to the stage of forming any conclusions as to possible fault or misconduct on the part of any individual and before they commence the draft of any report which may contain any finding of criticism of any individual.

It is important to emphasise that this is an investigative process which, if followed, should help the commissioners to avoid any error of leaping to conclusions based on inadequate or incomplete information.

There is a further stage after a report is in draft (the ‘Maxwellisation’ to which we have already referred) where the draft or relevant portions of it are disclosed to any individual the subject of criticism in the draft with adequate time so that the individual may respond with any points which he or she believes should be taken into account or given weight before the report is finalised.

There is much criticism that this Maxwellisation process allows any individual or group to thwart and delay the final completion and publication of the report. But the point is that if the ‘Guideline K’ provisions have been duly followed in the investigation stage, then the points which any individual reasonably wishes to make should have been duly taken into account and should inform reasonable, balanced narrative and findings in the report.

If, however, the investigators do not deign to observe ‘Guideline K’, then there is the substantial danger that at the drafting stage their minds will be closed: they will be resistant to any submissions for material amendment of the report while the individuals subjected to criticism in the draft report will respond in outrage that their position has not been fairly taken into account.

So ‘horns will be locked’ and the report, when eventually finalised and published, will likely be rejected by those (and their adherents) who feel aggrieved they have been unfairly treated.

All this must be given urgent consideration before the House of Lords resumes its debate on the bill on Tuesday. The bill should be amended to write in ‘Guideline K’ as a statutory requirement on the commission in all its investigations.

This is fundamental to the protection of all individuals under investigation to prevent the commissioners from buckling under pressure for ‘short cuts’ whether because of budgetary or political pressures.

Two final points:

• Sadly, the government appears intent on repeating the mistakes of the Stormont House Agreement of 23 December 2014. That agreement quite wrongly promoted ‘victim-centred’ justice rather than even-handed justice. It also proposed to give inordinate powers to a Historical Investigations Unit such as now are proposed for the commission under the current bill.

• Secondly, there’s great danger that the commission will fall into the trap of seeking easy ‘wins’ against members of the security forces by reason of ability to access security force records while being unable to make any progress against terrorists and paramilitaries by reason of their absence of records. This will create a moral imbalance which will poison the possibility of reconciliation which the bill seeks to promote.

But there is still time for wiser counsel to prevail.

• Neil Faris is a Belfast lawyer who has written extensively on legal defects in the Stormont House legacy plan. His first two essays in this series are below

Neil Faris January 18: The legacy bill will give excess power to Troubles investigators

Neil Faris January 19: Naming and shaming of people on legacy could divide NI if 'unfair'