Neil Faris: If the naming and shaming of people over legacy is seen as unfair by one part of the community it could divide Northern Ireland, not reconcile it

It 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 yesterday (scroll down to link below) 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.

Rather, this article series seeks to draw urgent attention to the proposals that the new ‘Independent Commission for Reconciliation and Information Recovery’ (‘investigations commission’) should have excessive powers (as set out in the article yesterday) over individuals.

The Legacy Bill does contain some limited protection for individuals under investigation.

If the commission proposes to include in any report material criticising an individual the chief commissioner must first give that individual a draft of the report and then allow that individual to make representations about that material during an applicable response period (generally 30 days).

Thus, the commission in its reports will be able to name and criticise individuals should the chief commissioner consider that sufficient evidence exists to do so. This process of allowing individuals likely to be subject to criticism access to the draft report – for the purpose of representations only – is generally known as ‘Maxwellisation’. But ‘Maxwellisation’ alone is insufficient protection for individuals in these circumstances. More is required.

The commission must produce a final report on the findings of each review. It must provide this report to the family member who requested the review. In almost all cases the final reports will also be published.

However, while the bill is replete with provisions protecting and advancing the interests of victims’ families it is largely silent as to the rights of those under investigation, save for the limited provisions already referred to, and this creates a worrying imbalance.

In regard to actions of the commission, a section in the bill does refer to ‘safeguards’ – but there is no provision for specific safeguards in regard to the exercise by the commission of its review and reporting powers as it concerns individuals who may be ‘named and shamed’ in commission reports.

The ‘safeguards’ section must be substantially expanded to provide full, proper protection for individuals who may be so ‘named and shamed’.

In normal investigations in a democratic society under the rule of law, there is an important distinction to be drawn between police powers to investigate criminality and a regulator’s powers to investigate (non-criminal) misconduct.

• When the police investigate criminality

There is an important constitutional principle in two parts: firstly, that the powers of the police should be properly limited and secondly that the role of the police is to investigate and to report to the Public Prosecution Service (PPS) if they reasonably believe, as a result of their investigations, that there is sufficient evidence to justify prosecution of any suspect.

The PPS has the entirely independent role of determining whether a prosecution should be mounted.

In the ordinary case of potential criminal proceedings where the PPS determines against prosecution the police (even though they may disagree with the PPS decision) may not publish any report setting out the findings of their investigation or naming any suspect. This is an essential protection against the creation of a ‘political’ police force.

• When a regulator investigates (non-criminal) misconduct

There is a range of protections for any individual under investigation (protections that tomorrow’s article will examine). But these are not contained in the government's Legacy Bill.

Thus, it should be a matter of concern to anyone who believes in due protection of the rights of the individual that, where prosecutions are not taken, the proposed legacy commission may publish (as in the role of a regulator) final reports identifying individuals as being responsible for or associated in some way with the death of the individual to whom the report relates.

As already indicated, there will be, in this regard, minimal safeguards in respect the naming of any individual in a report.

The problem is that there is no independent, outside assessment as to the strength of the evidence and there is no right of appeal. In terms of the corporate nature of the commission, will the chief commissioner be willing to make a ruling against the publication of a name which the investigations commissioner is intent on including in a report?

And of course, naming and shaming of an individual in a report which a section of the community feels that is unfair to that individual will not be conducive to the apparent aim of reconciliation which the bill seeks to promote.

But on the other hand, it may well be pointed out that the individual so named in such report will not be subject to prosecution and there are many forms of public inquiry which after investigation produce final reports which name individuals and may be severely critical of their actions (or inactions) in regard to the matters which the inquiry has been investigating.

However, the new proposed commission lacks the important procedural safeguards which all other public inquiries observe.

The third and final article in this series (tomorrow) will suggest how an investigation should be fairly carried out following good practice.

• Neil Faris is a Belfast lawyer who has written extensively on legal defects in the Stormont House legacy plan

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