Jamie Bryson: Alyson Kilpatrick's public attack on independence of legacy body beyond belief

Amongst other things, Ms Kilpatrick - in her capacity as chief commissioner - launched an attack on the Independent Commission for Reconciliation and Information Recovery (ICRIR), claiming that the position of Peter Sheridan as lead investigator was “untenable” and also questioning the impartiality of former Lord Chief Justice Sir Declan Morgan on the basis that he sits on the supplementary panel of the UK Supreme Court.

These political arguments have been at the core of nationalism’s campaign - waged largely via surrogate ‘victims’ groups and lobbying organisations - against the Legacy Act.

Before analysing these (utterly baseless) claims, it is important to begin by placing this week’s public outburst by the chief commissioner into context.

The NIHRC is a statutory body, with prescribed functions set out by Parliament. It may seem obvious, but nevertheless necessary to point out, that none of these functions relate to acting as political campaigning organisation.

As an aside, the commission is not the chief commissioner. The chief commissioner is a specific office within the commission, and it is trite to point out this office does not confer powers to use the NIHRC as a vehicle for political campaigning.

Therefore, it would be interesting to know whether the chief commissioner’s public utterances were pre-approved by the other commissioners and/or whether they reflect the view of the commission as a body corporate.

There has been, at the time of writing, no answer to that.

The assertions around the independence of the ICRIR have been tested before the High Court and Court of Appeal in the case of Dillon and others.

On each occasion, the court has found them without any merit whatsoever.

In the appeal to the UK Supreme Court, there was what is known as a ‘cross-appeal’, which was an effort by the applicants in Dillon to challenge the Court of Appeal’s rejection of their assertion (backed by the NIHRC) there was any issue with the ICRIR’s independence. The Supreme Court rejected this cross-appeal, determining it was “unarguable” (meaning it is legally devoid of any merit whatsoever).

There has further been the somewhat palpably absurd assertion by the chief commissioner that some unnamed and unknown counsel feel in some way inhibited from challenging the ICRIR because, at some unspecified and unknown future date, they may appear in some unrelated case before the Supreme Court and Sir Declan may be sitting.

This is the equivalent of arguing that counsel would be wary of appealing a Court of Appeal decision (such as the Dillon case itself) of the Lady Chief Justice, because Dame Siobhan Keegan also occasionally sits on the Supreme Court and counsel may appear before her in that capacity in some other case. It is patent nonsense.

Therefore, the undisputed legal position is that the assertions being put forward by the NIHRC - via Ms Kilpatrick - into the public arena are legally unarguable and devoid of merit. This has been determined by the highest court in the United Kingdom.

Given these arguments have no legal basis, they can therefore properly be regarded as, at best, purely political arguments and, at worst, nationalist propaganda.

Why then is a public body, whose functions includes a requirement to uphold human rights and the public’s understanding of same, actively putting before the public assertions which have been determined to have no legal basis whatsoever?

Can it be consistent with the statutory functions of the NIHRC to put before the public arguments, cloaked in the language of human rights, which are legally unarguable?

Rather than informing the public, is it not the case the NIHRC are misinforming the public?

Viewed this way, it is clear the NIHRC are behaving as nothing short of a campaigning organisation, largely parroting nationalist political arguments dressed up in the language of human rights.

That these political arguments effectively resolve to arguing that anyone who served in the RUC can have no role in legacy matters is an extraordinary attack on the professional integrity of such persons, and that such an argument is being made by the NIHRC, which is supposed to represent the whole community, is almost beyond belief.

Perhaps the NIHRC needs reminding that, whether they like it or not, former RUC officers have human rights as well.

The arguments around the independence of the ICRIR are clearly political arguments which nationalists have deployed as a campaigning tool against the Legacy Act. That is very good reason why the NIHRC ought not to be parroting them.

Jamie Bryson, NI Director of Policy, Centre for the Union