Stormont House Agreement: ‘Legislation Does Not Represent Independence’- Says Barrister

Eamon Sweeny at the Derry Journal digs beneath the platitudes of politicians in his quest for what people really think of the Stormont House Agreement's proposed legacy legislation.

Barrister Padraigin Drinan.

  • Victims relatives have been scathing of the draft legislation
  • Barrister Padraigin Drinan says the legislation does not represent independent investigation
  • The issues have also been raised in Dail Eireann

Reaction from people involved in the campaign for justice from relatives of ‘Troubles’ victims has been strong since the ‘Journal’ exclusively published the legislation on dealing with the legacy of the past on on Tuesday.

Read the document in full here

The legislation is due to be presented at Westminster on October 12. Previously a Freedom of Information request seeking to view the details of the proposed bill was refused on the grounds that releasing such information was “likely to prejudice development and subsequent implementation and could allowed targeted lobbying by certain groups that could inhibit objective decisions being made.”

However, the ‘Journal’ obtained a copy of the legislation which the political parties involved in negotiations at Stormont received on September 29. And, at Westminster recently Secretary of State for Northern Ireland, Theresa Villiers had revealed that all five political parties involved in the negotiations had given their support to the proposals for dealing with the legacy of the ‘Troubles’.

Whilst Theresa Villiers denies that the legislation does not represent an amnesty the fears of victim’s relatives that this was the case were confirmed when it became clear that perpetrators of killings would be able to confess their crimes to the newly established Historical Inquiries Unit (HIU) and then walk away without fear of prosecution. Relatives of those killed will also not be told if any disclosure has been made in relation to the deaths of their loved ones. 

Helen Deery, the sister of Manus Deery with her son Sean at a press conference in Derry.

The legislation does allow scope for prosecutions if new evidence comes to light, the manner in which disclosed information will be evaluated makes it unlikely that a a wide range of prosecutions will ever take place. The HIU is set to replace the Historical Enquiries Team (HET) and unlike the HET will have full policing powers and access to state documents.

Yet, relatives have highlighted that they fear the HIU will not contain the promised level of investigative independence hoped for. The new director of the HIU will be appointed by Peter Robinson and Martin McGuinness, and they will also have the power to sack the director as well. And, members of the British Army and police-both former RUC, PSNI as well as serving members of those organisations will be eligible to take up posts as ‘independent investigators’. The establishment of the HIU is set to cost £150 million and its remit is set to last five years.

Kate Nash, whose brother was killed during Bloody Sunday protests behind the Alliance Party leader David Ford Talks begin at Stormont, in east Belfast, aimed at saving the power sharing Northern Ireland Assembly in September.

The Secretary of State will have the ultimate say however with the ability to shut the entire operation down. And cross-border evidence from the Gardai in relation to ‘Troubles’ related murders will not be admissable in Northern Ireland as the legislation contends it may be detrimental to international relations between Britain and the Republic of Ireland. Barrister Padraigin Drinan, who has been to the forefront of many campaigns for victim’s relatives including some of the Bloody Sunday families is in no doubt that the legislation lies far from the impartiality of investigation that was heralded.

She told the ‘Journal’:

The bit that causes me most concern is the apparent ability of former members of the RUC and PSNI not to be investigated, because if the new HIU had the same powers as the Police Ombudsman where they couldn’t be investigated, they still cannot be investigated, but those same people can be appointed to the HIU. So, basically the RUC and PSNI can walk clear. The difference is that the HET did not have the powers of arrest. If they found something wrong they had to get a police officer to come and investigate, but now the HIU will have the powers of arrest. The HET were investigating British Army cases and civilian cases but the Police Ombudsman was investigating police cases. So, the police appear to be still as well off as before, but the Police Ombudsman will have no further powers.

Independent T.D., Clare Daly.

On the point that the First and Deputy First Minister’s have the power to hire and fire the director of the HIU, Padraigin Drinan said:

They can dismiss the director if they are not satisfied with something they are doing. The legislation says they must have the grounds to do this, but the fact they have the power of dismissal doesn’t appear to me to be independent. The officers of the RUC and PSNI who were involved in ‘Troubles’ related cases are walking clear, that is the main thing. What about cases involving collusion? If the officers concerned are not currently serving there’s nothing the Police Ombudsman can do about it.

Padraigin Drinan also contends that the framing of the legislation was deliberately construed in this manner to further elongate any ‘Troubles’ related inquiries.

She told the ‘Journal’:

This is only Strand One of the legislation. Strand One is necessary because the European Court have told the British Government that they must conduct independent investigations, but this will not comply with the European conventions on independence and by the time it is realised that it does not comply, many more relatives will probably have died. All the participants in the war can basically forgive each other and walk away and destroy the documents.

Manus Deery was 15-years-old when his life was taken by a British Soldier in May, 1972.

Sinn Fein's Gerry Kelly.

Over 40 years later his sister Helen is still battling to get an inquest into the murder in Derry’s Bogside.

Northern Ireland currently finds itself in the peculiar position where it has a lack ofcoroner’s. Advertisements requesting applicants for people suitable to the role have been sent out, but to date there have been no appointments made.

In the coming months the North’s Lord Chief Justice,Sir Declan Morgan, will assume the Presidency of the Coroner’s Court and can make appointments. However, the lack of progress has eroded any remaining confidence of Helen Deery had in the system.Speaking to the ‘Journal’ about the legislation on investigating the past she said: “I am disgusted by it. Just disgusted.

I think the whole coronial process will disappear as well. I do not believe there will be another coroner appointed here. It took 43 years to get a courthouse booked in order to have an inquest. It was due to be from April 13-22 this year and all the witnesses in Manus’ case were summonsed. Then the week before it was due the judge said he wanted to conduct it as a non-jury inquest and I refused it because I wanted the same entitlements as everyone else.

Barrister Padraigin Drinan said:

This a very important point. The Lord Chief Justice makes one major speech per year and this year he said how unhappy he was about how victim’s cases are proceeding. So, it shows the judiciary have concerns about all this.

Helen Deery continued by saying:

Year in, year out you are getting kicked backwards. There is no moving on, there is no closure and may God forgive any of the politicians who have signed up to support this legislation because of the position it will leave thousands and thousands of people in.
How can I face my brother in heaven if I do not get justice for him?

And, Northern Ireland’s senior coroner has hit out at the “antiquated” inquest system at the end of his last case on Wednesday. John Leckey, said the law governing hearings is stuck in the 19th century and needs to be overhauled in a way similar to England and Wales in 2009.

Mr Leckey said:

We are out of the mainstream of development in coronial law and practice and I hope very much that those who have the power to do something about our antiquated law will be proactive, look at what is happening in England and Wales and concede Northern Ireland needs to follow suit.

He investigated deaths since 1984, including Troubles cases dating back decades.On Bloody Sunday, January 30, 1972, William Nash was shot dead by a member of the Parachute Regiment and his father Alex was severely wounded in an attempt to come to his son’s aid.

William Nash’s sisters, Kate and Linda have continued to campaign for victim’s rights and the arrest and prosecution of the soldiers involved in the Bloody Sunday killings.Kate Nash had long held suspicions that the contents of the proposed legislation on investigating the past contained proposals that perpetrators could confess and then walk away.

Speaking to the ‘Journal’ she said:

There is no justice intended here for anybody obviously. I think the whole thing has been designed to get soldiers as well as IRA members to have a clear way out. Revisionism is definitely at work in all of this. I think it is now clear there has been a long term plan at work in this and it has probably been put in place over some years. We have been saying all along that victims will be shafted, but we will fight them to the end on this. It’s been a stalling process. Even with regard to the re-investigation into Bloody Sunday they could have arrested over 50 soldiers by now, but they haven’t done it. Why not?

In the wake of the publication of the legislation dealing with the past by the ‘Derry Journal’, Derry based human rights organisation, the Pat Finucane Centre(PFC) issued a statement which said:

In common with other human rights Non Governmental Organisations in Ireland and abroad, the Centre PFC welcomed many of the legacy proposals contained in the Stormont House Agreement (SHA).

Hundreds of families who have been waiting many years for the deaths of their loved-ones to be investigated by an institution compliant with Article 2 of the European Convention on Human Rights were heartened and encouraged by the proposals. They, and we, have been waiting with increased impatience for London to produce hard legislative proposals.

The proposed legislation implementing that Agreement, however, as understood by the PFC, falls far short of what we and others believed would be the outcome of the SHA. The legislation, as we have seen it to date, amounts to an act of bad faith by London. It bears little resemblance to the proposals outlined in the SHA.

We could not recommend that those families with whom we work should engage with the institutions as proposed. There are major concerns regarding the criteria for cases to be re-examined, so-called national security caveats and other concerns too numerous to outline.

Further, the proposals are likely to cause even more serious damage to public confidence in the British government’s capacity to live up to its domestic and international commitments. The proposals also risk compromising public support in current policing arrangements. We urge London immediately to rescind the legislative proposals and engage with political parties, the Irish Government and NGOs to redraw the legislation or risk a disastrous outcome with the very families the proposals were intended to help withdrawing support.

Clare Daly, and Independent TD for the Dublin North constituency has raised the matters concerning victim’s of the conflict in Dail Eireann. Speaking to the Irish Minister for Foreign Affairs, Charles Flanagan she impressed upon him the need for “trust and transparency”.

Speaking to the Journal Clare Daly said:

I’m happy to note from the Minister’s response that he believes that victims should be consulted and engaged with as part of the process of legislating to fulfil the commitments of the Irish Government under the Agreement, this is something that a lot of people have been very concerned about, and I’d hope that his answer was a genuine one, and his interest in communication and consultation equally genuine.

In general, the Irish government haven’t sufficiently interested themselves in Northern Ireland, and there can be an unfortunate tendency for some amongst them to treat Northern Irish issues as political footballs to be kicked around when it suits them.

Trust and transparency is key, and transparency from the state most important of all - closure and dealing with the past won’t be possible without those & I think that’s the biggest stumbling block.

In terms of dealing with the past, I think that transparency is absolutely crucial, and that means no secrecy for all sides, especially the state. The state absolutely has to acknowledge its role. I’m not in favour of individual persons being rounded up for past crimes - I think total transparency from the state, and acknowledgement and openness about what happened is the way to go.

Sinn Fein have described the proposed legislation on dealing with the ‘Troubles’ as “inadequate” and have claimed that the draft proposals revealed by the ‘Journal’ does not reflect what was agreed within the Stormont House Agreement in December last year.

North Belfast MLA for Sinn Fein, Gerry Kelly, who is on his party’s negotiating team for the ongoing talks said:

Substantial changes are needed to get back to what was agreed, particularly around maximum disclosure for families. It is clear from reading this document that the focus of the British Government appears to remain on hiding the truth rather than on full disclosure. Families whose loved ones were killed during the conflict are entitled to know the truth. We will continue to work in the negotiations to achieve the mechanisms agreed at Stormont House so that families achieve maximum disclosure.

Meanwhile, Stormont Justice Minister David Ford has apparently put himself on a collision course with the Northern Ireland Office (NIO) by telling the brother of an IRA victim during a meeting that the HIU “might at best produce one or two prosecutions.

Mr Ford has not denied making the comments to Ken Funston whose brother Ronnie was shot dead by the IRA on the Fermanagh border in 1984. Ken Funston has slammed the now defunct HET report into his brother’s murder and added that he felt “betrayed” by Mr Ford’s view that the incoming HIU would offer virtually no hope of justice for his brother. The minister was asked to comment on the likely scale of prosecutions that the HIU would deliver and Mr Funston said that David Ford’s response was “shocking.”

Considering the way this legislation is being trumpeted by the NIO, British Government and by the Assembly-that we are putting into place a procedure giving a lot of victims hope that there will be a thorough investigation into the death of their loved ones. But the reality is, the whole thing is a sham.

Read the document in full here

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