Neil Faris: The legacy bill will give excess powers to investigators of Troubles events and needs to be urgently revised

Yet there is little true debate to seek a way forward.During the past 25 years various attempts to seek agreement on the legacy problem have been unsuccessful.

During all that time the grief and distress of victims has persisted.At least we should all endeavour to conduct the continuing legacy debate in a respectful ways. Let’s avoid debating to ‘score points’ from any atrocity whether committed by republic or loyalist terrorist or by any members of the security forces.Perhaps, part of the problem is a collective unwillingness to commit to a deeper analysis that goes beyond demands for ‘victim centred justice’ and conveniently ‘blaming the state’.

These are false notions.

It is central to any concept of the rule of law that justice must not be tweaked to the demands of victims but must be truly even handed between alleged perpetrators and prosecutors, while alert to the proper rights of victims.

Yet these central propositions for a democracy under the rule of law are hardly – if at all – recognised in the legacy debate.Until now most of the debate (inadequate as it has been) has focused on the controversial proposals for ‘conditional amnesty.’ But there is much more in the Legacy Bill that requires careful consideration.

In these three articles I shall give fuller attention to the new investigative and adjudicative powers which the government proposes to create.

In doing so I shall call upon these propositions around the rule of law which should underpin the debate.The bill establishes the ‘Independent Commission for Reconciliation and Information Recovery’ (‘commission’) with extensive investigatory powers, including full police powers, indeed powers in excess of those normally exercisable by the police in peacetime.

Following an investigation, the commission may refer a case to the Public Prosecution Service (‘PPS’) if the commission is of the opinion that there is evidence that relevant conduct by an individual constitutes an offence.But the commission must also carry out a review of each case of a death referred to it and publish a report on the review: it must issue the report to any family member of a victim who requested the review and it must also publish the report.

The power and duty to review may of course be expanded (by reason of victims’ and political pressure on the commission) into full scale re-investigations.The commission also will have extensive powers (as already indicated, greater than those of the police) to require any individual attend before it to give evidence, to provide a written statement and to provide physical evidence and documents held or controlled by that individual.These powers are excessive in going beyond the powers conferred on police officers throughout the United Kingdom, and amendment must be made to the bill to provide protection against any excess use or abuse of its powers by the commissionAdditionally, it is a constitutional aberration to confer on a body such as the commission this combination of powers:The police power to investigate crime for the purpose of report to the PPS;andA regulatory power to investigate matters of misconduct (short of criminality) and to issue public reports thereon.These powers conflict with each other, the distinction between them is not recognised in the bill and the bill fails to set proper limits on the exercise of the powers for the protection of individuals.Thus, amendment to the bill is essential and urgently required.One of the commission’s functions will be to carry out ‘reviews’ into all cases within the ambit of the legislation where a request for such review is made by a family member of a victim.Thus, the commission is to have an investigatory arm to carry out such ‘reviews’ and this will be headed by the Commissioner for Investigations (investigations commissioner’) who will have all the powers and privileges of a police constable.

The investigations commissioner will also have the power to designate any other officer of the commission with such full police powers.The term ‘review’ does not preclude a full, police-equivalent, criminal re-investigation.All investigations will be capable of leading to prosecutions, should sufficient evidence of a criminal offence exist.The commission’s officers will have full powers to:• arrest and detain suspects for questioning;• obtain search warrants or other court orders requiring the production of evidence; and• obtain samples for forensic testing;In addition, the investigations commissioner will additional powers which are not generally available to police officers and which are reserved in other contexts for the investigation of particularly serious crime.

These additional powers entitle the investigations commissioner to compel evidence from witnesses including:• oral and written testimony;• physical evidence;• documentsThere is much detail to consider and it is really necessary for everyone to grapple with this immediately as the House of Lords in London will be continuing its debate on the Bill on 24 January.

So, the next article (tomorrow) will explain further the reasons why everyone should be concerned about the wide powers to be vested in the new commission.

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

• Editorial: Plans to tackle legacy again turning against state forces