This is the start of a new inquiry for the Northern Ireland Affairs Committee on the Government’s new approach to addressing the legacy of the past in Northern Ireland. Daniel Holder, Alyson Kilpatrick and Anna Bryson, welcome. Could you say who you are and what your role is?

I am Daniel Holder. I am the director of the Committee on the Administration of Justice—CAJ—which is a Belfast-based human rights NGO that has been long immersed in the detail of legacy, including our most recent report in November last year, which related to the question of the viability of root-and-branch reform of the ICRIR.

I am the chief commissioner of the Northern Ireland Human Rights Commission, which was set up, pursuant to the Belfast/Good Friday agreement and the Northern Ireland Act. Prior to that and relevant to the work of this Committee, I was human rights adviser to the Policing Board for a number of years. I am also the independent expert who is referenced in the PSNI’s evidence to you; I carried out the review of Kenova.

Hello. I am Anna Bryson. I am a professor and director of research at the School of Law at Queen’s University Belfast. I am here to speak to written evidence that was submitted jointly by myself and my colleague Professor Louise Mallinder, also of Queen’s School of Law and the Senator George J. Mitchell Institute for Global Peace, Security and Justice.

Thank you very much. What is your view on the current Government’s approach to legacy thus far, Daniel?

Things have begun to move, but they are moving very slowly. Things like the legacy inquests could have been opened a lot earlier. The commitment to repeal could have been taken forward a lot earlier. We are only really at a stage now where we are looking at potential measures on reforming the ICRIR. We are quite concerned about some of the appeals, particularly—I am sure we will get into this—the revival of the notion that there should be some sort of system of pseudo-inquests, some sort of exceptionalist system of what would essentially be second-class inquests outside the framework of the inquest system. Lord Caine recently said, rightly, that the vast bulk of the Legacy Act essentially is the ICRIR. If you look at the whole framing of it, the amnesty has now gone. The framing of the ICRIR was very much around amnesty. The purpose of the Legacy Act was to replace the proper investigations that were taking place under the package of measures with ICRIR reviews. Our concern is that what is happening there is replacing proper and thorough investigations with much more light-touch reviews. In terms of the outworkings of our own report, we do not think things have moved on since the Council of Europe’s assessment that support for the ICRIR was minimal among families. We regularly hear the concerns of families that the ICRIR is essentially a cover-up commission. They have good reason for those concerns, yet there has been a unilateral decision to retain it. Nevertheless, both we and the Irish Government have looked at the question of reform. Given both the toxicity of the relationship between the ICRIR and the Legacy Act and its conduct since it was set up, our conclusion is that there must be some sort of clean break. We need substantive and meaningful root-and-branch reform, which produces an entirely distinct institution to the ICRIR, something with a different name, a different legal framework and different leadership, something unrecognisable to what is presently in place. That is the only thing that is going to render a reformed legacy institution viable in terms of both human rights compliance and the important fact of building confidence with families. I want to stress that that is doable. It is eminently doable. In terms of fixing the legal framework, the legal framework in itself is insufficient. It needs a lot more than that—it needs a change of composition and leadership—but a lot of the work in terms of fixing the legal framework was done during the Stormont House negotiations, as to what a potential blueprint could be. We also have the benefit of the learning from Operation Kenova. We welcome that there is a change of approach, but there has been a unilateral decision to retain this institution. I know there was a rush to set it up before there was a change of Government and a lot of money was poured into it. £250 million has been committed to this institution that currently has 24 cases or 18 individual investigations relating to 24 individual families, which is a tiny number. We think things could have moved a lot more quickly at this stage. However, there is very much a different approach and there is at least a level of engagement taking place.

Certainly we welcome the new approach. An awful lot more time and effort has gone into engagement, certainly with the Human Rights Commission. The quantity and quality of that engagement has improved enormously. We are meeting; we are hearing what is being considered. Since I first spoke to this Committee, we have met on three occasions. Very recently I had quite a fulsome update on where the thinking was. However, I also agree with Daniel. It has been very slow, it is very piecemeal and we are still unclear what the end goal really is. We say the ICRIR does not go far enough; we have said that in our written paper. This is one of the things that seems to be off the table for discussion. It was taken off the table before the families, who are the ones who we are supposed to be most concerned about here, had an opportunity to be consulted on it. The one thing that seems to be settled is the ICRIR, and we have some concerns about that. Everything else is up for discussion, which we absolutely welcome. The ICRIR is not going to gain trust and confidence. It has not. It has been in existence for over a year. The numbers are minute compared to the cases and incidents that need to be dealt with. That is despite the fact there is nowhere else for these families to go. Everything has been shut down for a year. There is nowhere else to go, but still very small numbers are coming forward to the ICRIR. If we are serious about this—I know this Government are serious about it and I believe what I am being told about that—we need to ask why. Tinkering around the edges is just not going to change that. I would also query whether the approach is sufficiently cognisant of what is sought to be achieved and what the purpose of the Act is. I have no reason to doubt when I am told that it is believed that this will achieve reconciliation, but I am not told who is supposed to be reconciled by the Act or where that reconciliation is coming from. Is it between families? Is it between the state and families? Is it society more generally? Is it between the Army, the police and the state, et cetera? That needs to be clear. Somebody needs to sit down and say, “These people are who we are trying to reconcile. This is what we are trying to do. This is why we are trying to do it. This is why it is going to work.” In doing that, they need to listen to people like Anna Bryson. They need to listen to the families. If they do not do that, the whole thing will have started from the false premise that somehow forgetting about what happened before is going to make people forget their fears and distrust of each other and of the state. I want to make one other point, which is often forgotten. This is why the fundamental principles are more important than tweaking around the edges. In many of these incidents, in inquests or Police Ombudsman investigations the actual suspects are arms of the state. Whether it was the intention or not, the state has been enabled to close down all those investigations into itself. This is not a truth commission, in the way we might have understood that somewhere else in the world, where you are simply reconciling two communities. That is a huge step away from human rights principles. It is a huge step away from the ECHR and Article 2. I am not saying that it is not possible to find something very constructive here, but it is certainly not going to be found and it is not going to be lawful unless there is a very real justification, a legitimate aim and that it is also achieved lawfully. As much as I would like to be able to be constructive and say the ICRIR can be maintained, enhanced and tweaked around the edges, I do not foresee a way in which it is going to end up being able to lawfully discharge its obligations. I have one very last thing to say. I am sorry; I have probably been speaking too much for the question. Even if the Human Rights Commission, doing our job, could say, “This is compliant with human rights standards as we know them” or, “This now complies with the Court of Appeal,” which was limited in our analysis of the situation, you still have to go back to the question, “Is this going to do what it is supposed to do, which is reconcile?” If not, why touch it? Why bother? Why upset and cause distress? Through the Policing Board on Operation Kenova and now at the Human Rights Commission, I have met so many of these families. They are not belligerent. They have reconciled. They reconciled following the Good Friday agreement. They have taken on so much reconciliation. They are saying, “This is not going to help; it is going to hinder.” If its fundamental premise is gone and it is unlawful under the Human Rights Act, I do wonder how we can tweak it and how we could actually achieve something.

Reconciliation should be for all. Do you really believe that the Government’s outlined approach is clear enough at this stage to meet the needs of victims? You have answered the question, really, but what does it need to do? How do we move on?

A very honest question needs to be asked. What is it trying to do? It is not enough to say, “Reconciliation is a good thing to try to achieve.” What is it that we are trying to reconcile here that was not done 25 years ago and has been worked on for years and years while these cases have been going through the traditional system? That is one thing I would ask. We cannot start just assuming that reconciliation of this nature is required and therefore find some way to work it. My colleague here is an international expert on the notion of reconciliation and what it takes. When this was started off—we cannot forget how this started off because a lot of families and members of Northern Ireland society remember how it started off—it was expressly said to be to protect veterans and it became about reconciliation after the event. That is how it is understood, and there is some justification for saying that. It is very difficult to then say, “We can tweak the thing that was set up to protect veterans, because it is not really about that; it is about reconciliation.”

Ms Kilpatrick and Mr Holder, I am not entirely sure it is fair or justifiable, in one breath, to welcome a greater degree of engagement from the Government in the evolution of their plans and consultation and then chastise them for not moving quickly enough. You can praise them for one, but do not damn them for the other. That is more an observation. On the take-up of engagement with the ICRIR, we have had a general election. The Labour party was clearly going to win that general election. It made very clear its opposition to the Legacy Act and its commitment to change it. Could that be the explanation, hitherto unnoted in answers, for that very low and arguably disappointing take-up? This was a longstanding problem facing another period of change and fluidity. Why would people necessarily engage proactively and fulsomely with something if they thought that, in pretty short order, it might be superseded by something else, be replaced by something else or have its terms of reference altered, making work in hand redundant?

Can I start with the length of engagement? It is, I would respectfully suggest, entirely possible to have good-quality engagement but for it to take far too long. Everything is subject to engagement when some things are absolutely clear and could have been done straightaway after the Court of Appeal judgment, for example. Not everything in the remedial order addresses what is in the Court of Appeal judgment, so there is no need to engage on that. In terms of the reluctance to sign up to ICRIR, that may be speculation. I do not know where that comes from because I certainly have not heard that. No one has suggested, either in the evidence or the ICRIR themselves, that people are not engaging for that reason.

But it could be.

It could be for any number of reasons, but what we have is the evidence. The evidence so far from families—you have heard from some of them in the past—and even from the police is that the reason they are not engaging is because they do not trust it. Nothing has changed. They have not begun to trust it and started to join in numbers. It is not simply that they are waiting to see whether anything better happens. What I would also say is that families have said—and you will have heard this yourself, and it is sometimes used against them—that they are getting old. They are getting desperate; they desperately want something to work. If they had any hope in this at all, they would have signed up already. They do not want to wait any longer because every day they wait is like torture to them. Many of these people have died. Some of the people I met through the Policing Board on Kenova have since died. They are not trying to string this out to wait for something different. That is all I would say about that.

On the engagement point, I totally agree. When the remedial order was passed, it made a finding of incompatibility. The ban on inquests in the Legacy Act is incompatible with the ECHR. The Government’s remedial order back in September could therefore have reinstated inquests rather than waiting in this way. I give inquests as an example of engagement. The Secretary of State himself has been very proactive on engaging. He has met with us, other groups and families. I have witnessed him meeting with inquest families. He has been very personable and very empathetic. He has listened to two families and their experiences. At the end of the day, after that, he has then done the precise opposite of what every single family in the inquest system asked. Every single family said, “We do not want to be sent to the ICRIR.” They understand the agenda behind it and what it has been set up to do. We are also in a situation where coroners have said that the ICRIR is not the appropriate mechanism to substitute inquests, and indeed the Court of Appeal has found that the ICRIR cannot lawfully conduct investigations into cases that were within the inquest system, yet the Secretary of State, after those meetings, took the decision to direct families to the ICRIR rather than simply reopening inquests. That is the frustration around engagement. One plea on engagement is that victims cannot be gaslighted anymore. The ICRIR has been traumatising enough; having inquests being taken off them has been traumatising enough. There were a number of occasions under the last Government where very significant changes were promised to the Legacy Act. The phrase “game-changing amendments” was used on a number of occasions. Both the UN High Commissioner and Council of Europe Committee were very critical that those amendments, when they did come, came at the very last minute so they could not be scrutinised. When they were scrutinised it was very clear they certainly were not game‑changing. A lot of them were window dressing, and some of them made the legislation worse. That is a real warning at the minute. We are going to move into a more formal stage of consultation in which the new Government will put out proposals. It is very important that there is not a claim that amendments are far-reaching and radical if they are not because we are all going to notice. Families are going to notice. They are going to realise that what is needed is very significant reforms, and that will be called out. In terms of the issue of why people are not going to the ICRIR, families are not fooled by the suggestion that this is just like an independent investigations unit, as was envisaged by the Historical Investigations Unit. The international community has not been fooled. The UN Human Rights Committee itself in Geneva last year called out the weakness of the ICRIR’s review function and called for it to be replaced by proper mechanisms. There is this notion that the ICRIR conducts proper and thorough investigations. It is very clear that that is not what the architects of the ICRIR set it up to do. They set its legal framework and appointed all the people who run it. That is even clearer since we have had the court rulings. If you look at the ministerial papers that were released in Dillon in the Court of Appeal, they demonstrate that the option that was put before Ministers of either continuing with the package of measures or adopting the Stormont House agreement was expressly rejected on the grounds that it would continue proper investigations, specifically to veterans. If you cancel some investigations, you cancel all of them. Instead, this light-touch review model was going to be brought in.

Can I pause you there? I am sorry, Daniel. We will be coming on to this in the next question. I just wanted to go back and ask my original question about the Government to Anna, if that is okay.

One of the problems is that hopes were raised with the bold statement that this Government were going to replace and repeal the Legacy Act. As you have heard from Alyson and Daniel, we have since seen a deep-seated frustration on the part of victims, who are now left somewhere in limbo. Following on to the question raised by Mr Hoare, it is very important, as Daniel said, to note just how legally literate and savvy the victims in Northern Ireland are, not least because they have been carrying the weight of all of this for years and trying as best they can to get answers. They well understand the detail of what is on offer at the ICRIR. Having listened to them, they have very considered and well-thought-through views as to why. I chaired an event only a matter of months ago. There were literally hundreds of victims in the audience. The session that I chaired had four families speaking, as Alyson said, to the pain that they have been carrying for decades. I never cease to be humbled just by how well they understand, but they were very clear about their reasons for their decision not to engage with ICRIR. On a more positive note, the manner in which this Committee is approaching this inquiry is really to be welcomed, not least because, in a number of key respects, you have broadened out the questions to the fundamental issues touched on by Alyson asking what we understand by reconciliation. ICRIR has said that reconciliation is its north star that will guide and inform everything that it does. It has also said it will inform the prioritisation of cases. It is clearly extremely important for us to stop and ponder what that means. We need to try to understand how they understand it; how that stacks up when we look to how reconciliation has been understood and, insofar as it has been implemented in other countries, how that has unfolded; and, as you saw in our written evidence, how international courts and human rights treaty bodies have understood reconciliation. Again, the commissioner has said very clearly he wants to have rights-based reconciliation. We clearly need to look at that relationship between rights and reconciliation. As I said, I welcome the manner in which this inquiry is opening up those broader issues. I know we will come on to it later, but I saw that also in the approach to part 4 of the Act, which is the work on oral history and memorialisation. You seem to have taken a broader approach to that, taking a step back and saying, “What is the role of historians? How might a historical approach help?” I welcome that.

Thank you very much, all of you, for your answers. Some of you have touched on some of the bits that I am going to ask now. This is to all of you, but, Anna, you might want to go first this time. I know you have sent written evidence already, but, just for the Committee, do you believe the Government’s current process of consultation on specific measures to be included in primary legislation is adequate?

You touch on an incredibly important issue, Leigh. I just mentioned how you could have a human rights-compliant approach to reconciliation. Front and centre of that is the degree to which it is inclusive of victims’ perspectives. They must be consulted at both the design and implementation stages. A key question, then, is about the extent to which the victims were consulted. The issue really comes back to ICRIR. Whilst, as has been noted, there is an uptake in the pace of engagement and consultation, the fundamental issue here is that victims were not directly consulted on whether to retain ICRIR. Paul Gallagher, for example, who has spent most of his adult life in a wheelchair and who is a trauma consultant with WAVE trauma centre, was very clear in stating the manner in which it rubbed salt into the wounds to be asked to be consulted after that core and key decision was a fait accompli. The other way in which we might look at the extent to which victims are included is in the level of engagement. As has been noted in terms of the level of cases, the number of families coming forward to seek answers is very low indeed. That is a deep cause for concern.

I would endorse that entirely. Consultation is not talking or sharing information; it is allowing people to influence the outcome. If the outcome seems predetermined, even if it is not, it leaves people with the feeling that the consultation attempt is disingenuous and is not going to influence anything. One of the singular decisions about the ICRIR is that it is supposed to be there instead of all of the package of measures from the McKerr cases, which went through courts for decades. That was decided upon. Even after consultation, we are told, “That is staying. We are not really listening to anything you say about that.” That is very disappointing. That pushes trust and confidence even further away. It pushes people further away. They say, “This is so difficult to talk about and I am going to have to talk about it again, just to be told that the core thing that I object to is not changing.”

To reiterate, things could have moved a lot more quickly. When the new Government took up power, they could have quite quickly repealed the Legacy Act. That would not have left a void or vacuum. The election was in July 2024. It would have returned us to the de facto and de jure situation that existed on 1 May with the package of measures and all the existing mechanisms—inquests, Police Ombudsman investigations and PSNI investigations—that at the time were mostly delivering for families. In terms of where we are now, we have had engagement by the Secretary of State and officials, but it really needs to move into a more formal stage where proposals are put in writing and a formal consultation document is produced. As with all of these things, the devil will be in the detail of what is on the table. That is the stage we are at now.

Thank you very much. Is there anything you want to add—again, you have touched on this slightly—about the ways in which that could be improved? Daniel, you have just said there could be something formal. Is there anything further you want to add in terms of how this can be improved?

Let us not forget that we did have an enormous consultation, which was a formal proper exercise, on the Stormont House agreement. There were thousands and thousands of responses clearly indicating support for that approach. That essentially is the existing agreement that sits there. This is an agreement between the UK and Ireland, including a treaty on one of the mechanisms that was completed and then was unilaterally torn up in 2020. A lot of consultation has already been done. We are really at the stage now of saying, “Reform has been promised and committed to; repeal has been promised and committed to. What is that going to look like in legislation?”

I can only agree with that. There has been years of consultation. An agreement was reached. New Decade, New Approach said, “We are going to put this in place in 100 days”. Everyone had reconciled with that and was looking forward to it. I am not sure what further consultation will do now. Certainly, as far as the victims and families are concerned, the vast majority are going to tell you what they have been saying for the last year and a half.

I agree with what has been said. There is consulting and there is listening. 17,000 victims responded to the public consultation on the Stormont House agreement Bill. They have given their views, and indeed many of their concerns have been endorsed in the courts and by international human rights bodies. It is time to listen.

Alyson, can I start with you? In your evidence, you say that reinstating inquests could and should have been done by remedial order. Why was that not done? What would be the most appropriate way to address that now?

I am not going to put myself in somebody else’s head as to why it was not done immediately, but we now see that there is an intention not to reinstate inquests but to put a lot of what would have gone to inquests into the enhanced inquisitorial procedures of the ICRIR. At the time, it was not intended that what it really meant was that inquests were back, that we have inquests again and that those inquests that were stalled or were not allocated would proceed. That is really all that needs to happen. I know it sounds simple, but it is a simple thing to do. We had inquests until they were stopped by this Act. If you want to reinstate inquests, just stop the Act stopping inquests.

Can the enhanced inquisitorial process get the same level of information and accountability as the previous inquest system could?

I do not, having seen how inquests work over many years and having been party to some of them. I have looked at what is required in, for example, the Kenova cases. What is it that gets to the information? This sort of enhanced inquisitorial procedure. At the minute, it is not even statutory. It is not a statutory process. I do not see that it has all the powers that a coroner would have, but, in any event, it has nothing more compelling than a coroner would have had. These enhanced proceedings seem to be being put forward as something that is going to get more truth and more answers and somehow overcome the problems with disclosure. No court has managed to do that yet; no coroner has managed to do that yet. These proceedings do not have anything that they did not. It is not about asking. It is not about having the power to ask for information; it is about getting it. That is a wholly different thing. What do you do when MI5, the police or paramilitaries refuse to hand over information? Where do you go? Sir Declan Morgan and his team cannot go anywhere that other people could not.

We will come back to some of the disclosure, the vetoes and the upstream addressing of those. Daniel, you are indicating the same, I think.

We are really concerned about the enhanced inquisitorial procedure model, which we and other human rights groups have called pseudo-inquests. We are not just concerned about it in legacy cases at the minute. We have made a more detailed submission on this to the Joint Committee on Human Rights, as have Justice, Amnesty and other NGOs. The concern is that, if an exceptionalist second-class inquest system is set up for one group of people, that sets a very risky precedent, which could mission-creep into other areas of the justice system. The enhanced inquisitorial procedure, which we are calling pseudo-inquests, was something put together by the ICRIR and Declan Morgan internally, arguing that it could emulate the standards in inquests. We were always very sceptical of that. If you just think through the various elements, it is meant to emulate inquests, but there is no court; there is no independent judge; families do not have access to their own lawyers; they do not have the same rights of disclosure; and the executive branch of Government can rewrite the judgment. That is absolutely nothing like an inquest. The vast majority of inquests are working very well, delivering verdicts and getting through their procedures, despite the delays in disclosures and things like that. There are a tiny number that have been derailed by the withholding of sensitive information, but the vast majority can simply proceed. The tiny number is five. I should declare that we act on one of them, Thompson, which has been appealed up to the Supreme Court. The particular issue around disclosure and inquests is tied into having some level of national security veto control. In terms of other evidence that this Committee has received, I was very taken by—I had heard it before—the annex to the PSNI’s submission, which is a speech given by Chief Constable Jon Boutcher to the British-Irish Association conference on this issue. What he emphasises there is very important. We need less secrecy, not more secrecy, in legacy processes. Far too much is over-classified. Bringing in this sort of pseudo-inquest system is really about the approach to information control, but it sets such a dangerous precedent for the UK in so many areas.

Anna, none of the elements can work independently and we need to get a complete picture. Based on the work of the model Bill team and the previous analysis, are there any amendments that could make a process like that fit for purpose? Additionally, there is obviously the narrative that more inquests and more exploration is injurious to reconciliation. How do you counter that?

In a general sense, Claire, I would go back to the point that Alyson made about tinkering around different clauses and so on. That is really not going to cut it, if there are so many fundamental flaws that the victims do not have the trust to buy in. Speaking to what you touched on towards the end about broadening it out to speak to reconciliation, I would really fear that, if people do not trust the fundamentals of what is on offer here, it is very difficult to see how you can broaden out to meet the various requirements of what we would refer to as thicker reconciliation. I am not a lawyer, so I am not speaking to the very detailed clauses. I am a historian, so my brain tends to think to that broader context and the other things that need to be put in place. For me, it is a case of sequencing. If you do not get the right to truth through independent and effective investigations right—this really saddens me—it is then impossible to get to the incredibly important work that needs to take place at a later stage around broadening this out to look at the way in which various different layers of society have been affected and harmed, to give them voice and to recognise gender-based harms, sexual violence and all of the deep and layered themes of our conflict. All of that work has to happen if we are to advance towards the type of sustained reconciliation that we all aspire to. The short answer is that tinkering with a clause here and there is, for the reasons Daniel outlined and for those broader reasons, unlikely to solve the problem.

May I add something in relation to what the Court of Appeal has already said? The Court of Appeal did hear from senior counsel on behalf of ICRIR, which was an intervener. They were given permission to intervene. They talked about all the procedures they had put together themselves, or could put together themselves. The Court of Appeal said two things. First, however well-intentioned you are, that is not good enough. The law is the law and it has to be set down. Whoever takes over ICRIR should be bound by the same law. It said next of kin involvement was inadequate and the rules on disclosure were inadequate. Why should some inquests be different? What is it? What is the difference here? If these are just as good, if not better, why not apply this to all inquests? There is something different here. Let us be honest about it and say these are different. Why are they different? They are pretending that these are just the same and, if anything, they might be a little bit better, but, if your loved one died outside of the Troubles, you are not going to get one of these better ones. I do not mean to be flippant, but it really gets to the heart of why people are questioning this. The last thing is the point about how holding inquests and hearing more cases is injurious to reconciliation. I know some people genuinely believe that to be the case. I am not saying they are wrong—maybe I am wrong on this—but there is no evidence that suggests that. It is quite the opposite. If you read Jon Boutcher’s speech, when he took over Kenova what was injuring reconciliation and injuring trust was the failure to have these cases heard, not hearing them. He came out with some appalling findings just in his interim report. That helped; that did not hinder. What hindered was the few cases that he dealt with where he could not get the information or, when he closed his interim investigation, the security service came out with information it had not given to him before. That is what hurt.

Thank you all very much. Please forgive this question; it will sound repetitive because you have all spoken very clearly on the subject already, but there is value for us and for this inquiry to have your answers contained under particular questions. Can the Government build trust in the ICRIR? Daniel, you have already given a very clear explanation, in terms of the origin story, institutionally and organisationally—I suspect you are going to give us a particular answer. Alyson, you have spoken very passionately about why philosophically, in terms of the understanding of the word “reconciliation,” this organisation perhaps falls foul. Anna, intellectually and historically, you have made a very clear case too. Cutting across everything that you have all said is the issue of public trust. None the less, my question is, again, about whether the Government can build trust in the ICRIR. I would be very happy if you wanted to give a one-word answer.

A two-word answer would be that there needs to be a clean break. As in the conclusion of the report, there needs to be an entirely distinct institution to transform what is there into something that is viable. I am happy to elaborate on the reasons as to why there are such concerns.

I would be very happy for you to do that.

If you look at the context of this, the Legacy Act was deliberately done to shut down the package of measures at a time when it was most delivering for families. Why was that done? It was done because Ministers in the then Government—they openly articulated this—did not like the outcomes of these mechanisms. They felt they were creating “a pernicious counternarrative” that damaged what they saw as the official truth. Logic would have it that they are not going to shut down those mechanisms that were doing proper investigations just to replace them with another mechanism that does exactly the same type of investigations and comes up with the same outcomes. They were looking to create something that was very distinct. We have the benefit of not just Ministers’ statements at the time but the papers that were declassified during the court hearings. If you look carefully at what Ministers were saying at least to some audiences, both within Conservative party publications and to the House on a number of occasions, they expressly said that the purpose of the Act was to shut down investigations into veterans and no longer would veterans have to fear arrest and questioning powers, a knock on the door, et cetera. That was said. They set the legal framework for ICRIR and appointed everyone who ran it, in line with that sort of agenda. As I have said, the ministerial papers in Dillon showed that the options of keeping the package of measures or implementing Stormont House—the advice to the Minister was it would be far more victim-centred, among other things—were expressly rejected because they would have involved continued investigations. Instead, at that stage—it was not called the ICRIR; the Family Report Body was the name it was given at that stage—it was very clear they wanted something that did much more light-touch reviews. I will just go into two elements of the legislation. One element of it would be the investigation or review powers. Of course, the word “investigation” was stripped out of the legislation and replaced with the word “review”, which normally means a desktop review of papers. If you look at the investigation powers for the ICRIR and compare them with the Historical Investigations Unit in the draft Stormont House legislation, either the official or the unofficial model Bill, the consensus that was reached at Stormont House was that you could not just trust an institution; you could not just give it discretion because no one trusts an institution in that context. You needed to boilerplate legally, when the Brecknell threshold for an ECHR-compliant investigation is reached, a duty on the institution to ensure that the investigation it conducted is thorough and compliant with the ECHR and with all the codified standards that are within that. Every single one of those safeguards was stripped out of the Legacy Act for the ICRIR. It was in the Stormont House legislation, but it was stripped out. Not only that, but there were repeated attempts by non-Government Members of the House of Lords to put some of that stuff in, to put in that the ICRIR would have to follow either ECHR standards or even the minimum standards set out by Operation Kenova. Each and every one of those amendments was rejected so that this late-touch review framework could be put in. You can even listen to the Commissioner for Investigations telling the Committee for the Executive Office of the Northern Ireland Assembly how it takes a very different approach and one of the examples that was given was that it was going to focus on answering questions that families have about things like the last words or the last experiences of victims, et cetera. Of course, some families will want answers to those questions, but that is not a thorough investigation. The same happens with the provisions within the Legacy Act for ICRIR reports. Within the Stormont House legislation, it was recognised that, to prevent a lack of trust and to ensure proper outcomes for families and victims, there had to be a codification of what would go into family reports and that it would have to involve maximum permissible disclosure to families about the findings of an investigation. All that is stripped out of the Legacy Act and the ICRIR. There is very limited discretion. They only have to look into a death. There are very minimal amounts apart from the minimum content that would go into family reports, which, of course, in the ICRIR are subject to—I am sure we will get on to this—the national security veto, which is the very thing that derailed the implementation of the Stormont House agreement. The reason why there is no trust is because families know this is not the independent investigative body that they were promised at the time of Stormont House or that existed under the package of measures. It is a very different creature. They are right not to trust it. The only way of building trust and restoring trust is to have a clean break from what is there and produce an institution that is very distinct to what is currently in place.

Taken as an institution, can the Government build trust in this particular institution?

“No” would be the one-word answer.

I cannot stick to one word—I have never been able to—but I will keep it very brief. I am going to concentrate on the practical independence required by Article 2 of the ECHR, applied directly by the Human Rights Act. We have talked about and the courts have looked at structural independence, hierarchical independence, the importance of both actual independence and demonstrable independence and why it is critical, particularly where you have cases where the state may be a perpetrator in some of the investigations. The court has not really reached a view on the practical independence of this ICRIR. It has said it will probably have to deal with it on a case-by-case basis. That may be okay if the ICRIR were a unit of the police and it only had one case at a time. Everything is going to go through the ICRIR. You have two men with very distinguished careers—I would not suggest otherwise—who were appointed at a time when there was an amnesty in place. None of the amendments were even considered, let alone put forward. The first senior appointment that was made by the chief commissioner was a very distinguished man—please do not take it any other way—but the fact of the matter is that he did not have practical independence for the purposes of any of these investigations. He was a very senior and well-respected serving officer within the RUC and PSNI. With no discredit to RUC or PSNI, that is not what “absence of practical conflict” means. If you took the Stormont House agreement or Kenova conflict of interest policies and applied them to ICRIR, it would not survive. That is a question that needs to be asked. Why is that? Those conflict of interest policies were there for Kenova, which had no serving RUC or PSNI officers? It got trust in some of the worst cases you can possibly imagine, cases involving multiple murders including a state agent. Just practically, if you imagine the numbers that are going to go through ICRIR, how on earth can we ask these families to take their place in a queue, after all they have been through, to get in front of a court to say, “The chief investigator in this case was trained by the police, who we say killed my loved one.” You cannot extricate them. You cannot add more bodies to somehow dilute it. The answer is no. I do not take any pleasure in saying that because both men have had very distinguished careers, but the way it has happened, the way it has been set up and the decisions that have been made since, I am afraid, mean there is not going to be confidence and trust. That is not coming from me, but I can put it in human rights language. I do not have the human rights language to dissuade people when they say they do not trust. I cannot say it is okay according to human rights law either.

Thank you for your candour.

I can speak in the academic language. As you know, trust is one of these very complex terms. It is looked at in terms of interpersonal trust, institutional trust and organisational trust; it is analysed in terms of cognitive trust and affective trust and so on. It is notoriously difficult to measure. We have had various different trust indexes over the years that have attempted to do that. Like reconciliation, it is much easier to pinpoint instances of its absence. When you have higher levels of trust, we know that the capacity for individuals to negotiate, co-operate and compromise increases. To come back to the focus of your question as to whether that trust can be built, we have seen instances in the past where victims have trusted—Alyson alluded to Kenova—and were engaged with in the right way, with rights in place and with independent mechanisms that they could have faith in. We have seen instances where trust can be built. It is not that we have irredentist or rejectionist victims who are unwilling to risk their trust if the circumstances are right. Unfortunately, as you have been hearing, we have a context where it is impossible for victims to place their precious trust, which has now been dashed so many times, in this particular institution. As we have been saying, trust linked to buy-in from victims is absolutely crucial. It is not just the academic literature that says that. The international courts have said it; even our own courts have said it. Justice Colton said that reconciliation “can realistically only be achieved upon consultation and with a degree of buy-in from all those affected.” The point you raise about trust is fundamentally important because, with all of the detail that we are talking about, you simply cannot move these mechanisms forward and advance reconciliation without that trust in place.

If I could go first, we need to remember that the ICRIR has only been there for a year. It was created. We had decades of cases going through the courts. Those were becoming more and more successful. The inquests were doing great work. As I said, we went through Kenova. That was dealt with very successfully. There was the Police Ombudsman investigation. All that trust was gained. It is not like the ICRIR was there for decades and we are now saying this. This was put in place to close down every route to information that people had. You can think about it this way. If you were to say, “In England, they have an awful lot of unsolved murders. Maybe they could do something like this,” it would not be contemplated here at all. It is going to take a lot more time, and maybe irreparable harm, to let this drag on for a few years just to have the same outcome at the end. People who are affected by this, who must lead this, have said they just do not trust it. To the point about people who are dying, all the ICRIR has done is extend the time. We are still arguing about the ICRIR and trying to get trust.

It may be imperfect, but there was nothing wrong with what we had before. I know that sounds very trite, but we had something before. This is the new thing; this is the new toy. If there were going to be something else because we really do want a different approach, the Stormont House agreement was the one thing that was agreed upon and it would work.

The remedial order will reopen civil proceedings. That is one avenue that families were really queuing up for. They really had confidence in the courts. Inquests could be reopened very quickly. In terms of the broader piece about an investigative body, just to stress again, the work was done; the legislation was drafted. There was a commitment in 2020 to implement it within 100 days. The work of taking the ICRIR and transforming it into a genuinely independent Historical Investigations Unit is done. The legislation is sitting there. It would not need to be prolonged. The barrier has always been political will, rather than any technical issue. The other institution, the cross-border information recovery institution, is also already sitting there with its legislation and an enabling treaty. It could be done quite quickly if the political will was there.

Good morning. Thank you for your answers to date. It is nice to see two of you again. Ms Kilpatrick, it is nice to meet you. You have touched on this ever so slightly, Mr Holder, but I wonder whether you could give me an answer on this. The Government are committed to considering previous provisions from the Stormont House agreement. You have just touched on that. Just for clarification, could or should that consideration include separating investigative processes and truth-seeking processes? I will open that to all three of you.

That was the conclusion reached at the end of the Stormont House agreement. I would frame it quite differently. On the one hand, you have a body that can conduct independent, police-type, Article 2-compliant investigations in the Historical Investigations Unit. On the other hand, you have a separate body, which is the cross-border Independent Commission on Information Retrieval, which does not involve an amnesty but follows the model of the commission for the disappeared, whereby people can go and give protected statements. That is different to an amnesty system in the sense that an Article 2-compliant investigation can still take place with another body. The only way that is going to work is if the two are successfully firewalled against each other, the work in practice and the work in law. The idea that they can be done in the same body simply is not the case. I have heard the argument, “Are the two functions not combined within the ICRIR’s framework?” They are clearly not. There is no provision for protected statements. It is not a cross-border body built up by immunities. It was not agreed by the Irish Government, et cetera. There are all sorts of reasons why they are distinct. The learning from Stormont House was to keep those two institutions distinct. We have said that we would advocate for a Stormont House agreement-plus approach. There were some gaps with the Historical Investigations Unit. Just to flag two, first, it could not deal with Article 3 violations, which would be very serious injuries, torture at the hands of state or non-state actors, punishment beatings, shootings and things like that. That could be extended. We have also recommended a counterpart unit in the Republic of Ireland to deal with investigations there. They would be Historical Investigations Unit-type bodies. The ICIR, not to be confused with the current body—the protected statements body—was always to be cross-border and international.

If an investigation is required as a matter of law, if it is one of those cases that requires an Article 2 investigation because there has not yet been one, that is precisely what is required. It depends on what you mean by “truth-seeking”. You can often get truth-seeking in investigations, and that is why Kenova was successful, but it had to start off with the intention of being a proper investigation and using proper powers. Only then could you say, “There is no prospect of further evidence and no prospect of prosecution. However, we can now go down a different route, look at this from an information-recovery and truth-seeking perspective and have an independent report on it.” I do not see how the same people can be doing the same thing. This is where the Historical Enquiries Team got itself in some difficulty, and it is what made the Police Ombudsman’s work quite confusing as well. In situations in Northern Ireland, you have people who may be a witness or a suspect, or you may even have somebody who is confessing to be a perpetrator, linked to somebody else who may be a witness or a suspect in a different murder. You need, at the start, to sit down and work out what is required here. Is it an investigation? That has to take precedent. Then you look at all your other methods. To think that the same people can be doing it is a disaster waiting to happen, practically. Legally, it is not fulfilling your obligations because you are not starting off from the premise that an investigation may be required in certain cases, where there is death, torture or serious injury.

In the lengthy negotiations around the Stormont House agreement Bill, I seem to remember there was a lot of conversation about the sequencing of the work of the ICIR and the HIU. The sequencing point is incredibly important in terms of truth recovery and independent investigations. You need both, in fact, is what we have learned. For example, in Guatemala, there was a lot of disquiet about the fact that a truth and reconciliation commission was seen as a way of drawing a line under the past without dealing with independent investigations and so on. In broader work that I have been involved in around apologies, we have sometimes seen criticism of apologies that are used in an obfuscatory fashion to close down conversations and create the illusion that we have dispensed with the past. People are very alive to that. It really speaks to this very delicate and challenging issue of the sequencing. International best practice would point to the need to uphold the rule of law by providing the independent and effective investigations required, but also to attend to the type of textured truth recovery that was provided for in the ICIR. As Daniel said, that is not folded into ICRIR’s work.

I do not say this flippantly, but I almost fear that we are in danger of discussing how to deal with the legacy of the Troubles for longer than the Troubles actually went on themselves. That points to some of the intractability of some of the issues at hand. Ms Kilpatrick, you said that there was nothing wrong with what we had before, in answer to an earlier question, and I have some sympathy with that assessment. It was Pontius Pilate who said, “What is truth?” Truth is defined by the person who is thinking what they say is the truth. The Stormont House agreement had many merits. The theory remains intact but, as we know, some of the parties in Northern Ireland withdrew their support. One can try to flog a dead horse for as long as possible but, in essence, in terms of local political buy-in, if it is not dead, it is certainly on a life support machine. Is there any merit in asking a devil’s advocate question? There can be a perfect legal system, which meets all of the international requirements and so on and so forth, but if it does not have buy-in and support from across the communities and other stakeholders—and I am including veterans and military in that as well—then we do run the risk of just running around and around this racetrack forever and a day. I just wonder whether there is not any merit in some political bravery from the Government, were they to turn around and say, “This is an intractable problem, which has gone on for far too long.” If there was a ready, easy solution, it would have been dealt with in the ensuing months, after the Good Friday agreement. Let us now spend our time and our energies trying to shape a better present and future, rather than dwell on the past. If evidence is there and the evidential thresholds are met, prosecutions, inquests are held—full stop, end of, no Legacy Act dealing with the legacy of the Troubles per se. Is there not some realpolitik bravery in taking that approach?

There may well be. I am glad to say that is not a decision for me. What I can do is analyse what is put forward and whether it is compatible with law.

I appreciate that. I am asking for your views on the principle.

I have to go back a few points to where you started, because you talk about dealing with the legacy of the Troubles and that this could have been dealt with over the last 28 years, but the Troubles were dealt with by the Belfast/Good Friday agreement. There were certain commitments made in that. In the ensuing decades, many of these cases have been resolved. It is not that we went from 1998 to today with nothing happening. The Ballymurphy inquest, for example, moved society forward by a huge amount just by recognising the truth of what happened. This is also not a situation where people are just absent some information. These were decades when people were told different things, opposite to what actually happened. You can understand the desire. I can also understand the desire of, “For goodness sake, are we still having to look at this stuff?” I live in Belfast now. I want a good future more than anybody, but history tells us this is not how to do it. You cannot just shut it off. You cannot say, “We need to get on now. Forget about it.”

With respect, that is not what I said. I was referring back to what you had said and the direct quote is, “Nothing wrong with what we had before.” Is there just no merit in resting the determination of outstanding issues on the evidential thresholds before either court proceedings and/or an inquest, without having to have anything else that sits around it?

What I said was a little more nuanced than that.

With respect, it was not, because I actually jotted it down verbatim. The record will show that that is what you said.

I did go on to talk a lot about how there were imperfections, things were not happening enough. If we want an analysis of imperfections, some of that was refusal to give disclosure. It was adjournments. It was closed material proceedings. It was PII certificates and things like that, bogging down the courts and bogging down the inquests. Dealing with the legacy of the Troubles, though—and this is my failing, I am sure—I do not understand what that means. I do understand, as a lawyer, failing to investigate when there is a legal obligation to investigate. I understand what civil claims, inquests and police investigations are. When I say we had something that worked before, what I mean is that these things were capable of being dealt with in the traditional way. It worked out over centuries, actually, with all the protections. I have two other things to answer this, because you cannot just answer that sort of question with a snappy answer. Stormont House did have support. I will let my colleagues comment if there is something I have missed. It did have a lot of support. This has no support politically in Northern Ireland. We have gone from some support at least to no support. In terms of veterans and military, it is a really important point that is so rarely brought up. I met quite a few of the veterans and military, many of whom are the victims, and many of whom I met through Jon Boutcher’s Kenova investigations. They are calling out for independent investigations too. RUC widows I met recently are calling out for independent investigations. They are not satisfied with this either. They think the state let them down, at best, or turned away, at worst. The other point about veterans and military is if they may be suspects. What they are getting with ICRIR is not a court process, which has been refined over centuries, where the rights of everyone are taken into account and balanced. They are getting something much more akin to the Police Ombudsman or the HET. The courts have found problems with that too, because they are not making proper findings. They are not being interviewed under caution, for example. This is something that is not serving anybody, including veterans and military, many of whom are victims in this. We are not simply talking about state crimes either. For the most part, we are talking about paramilitary murders, kidnappings and tortures. Too often, people think we are coming at it from a more partisan position and it really is not that. When talking about dealing with the past, I do not know how to answer that. There is no such thing as “dealing with the past.” The past happened and there are some things left outstanding that the law says should happen, but aside from that I do not know what else “dealing with the past” really means. We also make mistakes by thinking there is some sort of “dealing with the past” idea. Really, it is loads of unsolved murders, tortures, kidnappings, dead bodies that have never been recovered and state actors that have got away with it and may still be here. Finally, the very last thing I would say is this: Article 2 of the European convention is not just about investigating the past anyway. It is about learning why it happened, the root cause of why it happened, and stopping it ever happening again. If we do not know why it happened or why some of the cases happened, we will never know how to stop them happening again. There are people still walking around in Northern Ireland today who have never been interviewed by the police. That is a much more long-winded and maybe more unsatisfactory answer than you were asking for, but it is the only way I can answer, in my way, and in the way you have asked.

I may be pre-empting some questions I have later, but just on your last reflection there, Ms Kilpatrick, it seems to me that in a lot of this discussion people are talking past each other. It is not just in this conversation today, but in many of the other sessions that we have had and the various approaches. Feel free to shoot this down, but it strikes me that at least Mr Holder and yourself, because of the roles that you have, are very much approaching the issue of dealing with the legacy of the Troubles from a legal perspective. You just said you are a lawyer and that is totally fine and appropriate, but it does seem to me that that is a big part of your critique of ICRIR. The legal system, the judicial system, is fine. We have inquests. We should just be doing that. That is an entirely distinct thing, in many ways, from the whole process of reconciliation. I am not even sure if there is a question here, but I am sitting here quite frustrated, if I am totally honest, because I feel like there is an elephant in the room. You are approaching it from a legal perspective, a human rights perspective, which is totally legitimate, but there are bigger fish to fry in Northern Ireland when it comes to the issue of reconciliation. In a nutshell, is there a tension between a desire for reconciliation and role of truth-finding and the pursuit of justice in that? It seems to me that your passion comes from a place of a pursuit of justice and you feel like the processes that we have had before are fine, but I am just pointing out that it feels like there is something more needed. In the kindest understanding of what ICRIR is, it is trying to do that other thing as well.

Perhaps I should clarify, and then I will let Daniel answer that. When I say, “What was there before was perfectly good,” I do not say that that is it and we just never look to whether you can improve situations. That was to make the point that this is new. ICRIR is new. This is moving away from centuries of law.

That is exactly my point: that it is new and it is not just a legal process.

I know that, but it is founded in law. The point is that there are legal obligations that have to be discharged. If you are talking about human rights, there is a legal obligation on the state. ICRIR is set up to discharge the state’s human rights obligations. That is what ICRIR itself says. That is what the police say. That is what everyone says. We have to look at whether it is doing that, whether it is lawful under human rights legislation. If politics and society can come up with a solution that suits them, if it is lawful, I have nothing more to say, but if it is not, then I have to. Article 2 is not just very technical law. Article 2 of the European convention is about the purpose for it. It has decided cases over decades and says that it is about learning from the past. The right to life is meaningless if you do not have proper investigation, because you will never stop it happening again. It is about next of kin, family of the deceased, knowing what happened and people being held to account. It is not technical. Maybe I explain it in a way that is very arid.

That confirms my understanding. Thank you.

I probably have to get better at describing it in a more holistic way, but my role is human rights compliance.

I just wanted to jump in, if I may, on the back of that, because when you ask about whether something more is needed, I would love to know what more it is that ICRIR is doing. Precisely my concern is that, beyond these light-touch reviews aimed at information recovery, I do not see any evidence of the powers and capacity to get to those broader patterns and themes, the type of work that was envisaged for the Implementation and Reconciliation Group under Stormont House. There is a real concern about ICRIR’s capacity to address the type of thing that you are getting at, which goes beyond the legalistic approaches. I do not see any evidence, unless I am missing something fundamental, in their capacity and powers to go beyond these light-touch reviews. They have linked, therefore, reconciliation to information recovery and, as the Secretary of State put it, to getting answers to families. That is a very narrow approach to understanding what reconciliation is or can be. Searching as I have, I have not found the capacity or powers within ICRIR’s mandate to embrace the broader work. If we think the information recovery is likely to be limited—and there is reason to think that, given the small numbers of victims and families coming forward and so forth—and if we think of all of the limitations that have been outlined, in terms of the brake on the information accruing, which they will then potentially be able to publish, what then happens to that? There is no provision to join up the dots and to do this work on broader patterns and themes. I am just adding this to deepen your concern. I am not sure that I see, in ICRIR’s mandate, the ability to do the “something more” that you have alluded to.

My take on your question would be that the approach we are taking, and the approach that was taken under Stormont House, is very victim-centred. That is how the various mechanisms were designed. There is an interface with a package of measures, and the package of measures was mainly mechanisms that did focus on information recovery, producing information recovery, truth recovery-type reports and historical clarification. There were very few criminal justice outcomes, but let us remember why we had the package of measures. It was not something that just happened. It was something the UK had to agree back in 2004 and 2005 with the Council of Europe, because the European Court of Human Rights had made adverse findings that there were not independent and effective investigations and, therefore, that the UK was breaching its international obligations. That is why the package of measures was put together. In terms of victim-centred, you cannot help but draw attention to the fact that families were queuing up to use the package of measures before they were closed down. There were hundreds of cases in each of the mechanisms, dozens in the case of inquests, hundreds in the case of the Police Ombudsman and in terms of the civil courts. There were many cases within the remit of the legacy investigations branch. To move towards this light-touch review process, with a view to controlling the official narrative, bends us again to the question. One thing that can be said for certainty about reconciliation is that you are not going to get reconciliation where there is concealment and cover-up. That just leads to a very poisoned legacy that will not be dealt with, not just for years but for generations. A year or so ago, when the Legacy Bill, as it was, was being pushed forward, the CAJ and another NGO, a victims’ NGO, the Pat Finucane Centre, asked the human rights centre at the University of Oslo to put together an international panel of experts to look at the question of the extent to which there had been impunity for human rights violations during the Northern Ireland conflict. I have their report here. It is quite a weighty tome and it makes a vast number of observations, findings and conclusions, but one recommendation it makes for the future that dovetails into something that both Alyson and Anna have mentioned is that there is a missing piece within the whole framework. There is a very important issue for families about individual investigations into outstanding cases. What they recommended is that that be complemented by an international‑level commission that looks at themes and patterns, and that themes and patterns of violations were the missing piece in order to be able to deal with the much broader questions of reconciliation.

I am going to divert that to Daniel, if I may, because he has done some work on this precise issue.

It is very difficult to see it emerging from the ICRIR framework. Lord Caine went as far as to tell the House that the ICRIR could not possibly function without the immunity scheme. It was entirely built around that and it is now gone. What we and the UN Human Rights Committee have now observed is that there is a very weak mechanism there, whereas, in fact, we really need a mechanism that can do truth recovery with teeth. If paramilitaries, non-state actors are not going to co-operate, you need a robust approach around proper criminal investigations with proper police powers. This is doable. It has been done by Operation Kenova and you can actually get to the bottom of what happened. You need effective, independent investigative mechanisms that victims trust and victims will go to. Then you will be able to investigate the actions of every perpetrator, including republicans and loyalists. The complementary mechanism in Stormont House did not expect perpetrators to volunteer information. It has the powers of arrest. It has the powers of search. It has the powers of questioning, to get in and reach results. Its product, of course, in most cases, will not be a criminal justice outcome. That is pretty universally recognised, given the evidential issues, the passage of time and all of that. It will be an information recovery and accountability-type report that lets families know just what happened to their loved one. The complementary mechanism was then to be this model based on protected statements in the ICIR cross-border body, whereby individuals could volunteer information, a bit like the Independent Commission for the Location of Victims’ Remains, in the form of protected statements. That could be non-state actors. Equally, it could be state actors that wish to talk to it and say, “I witnessed this. This happened. I want that family to know that this is what happened.” That is the matrix of mechanisms. It is not going to be delivered by the very weak review model of the ICRIR and what it was set up for. It is going to be delivered by going back to a proper, robust investigative mechanism that can get into every set of actors and perpetrators.

If I were a paramilitary who had had 28 years to provide information up to this point, and who has, through a number of cases and inquests, tried to be compelled to provide information, I would be asking, “Why would I do it now? There is nothing to be gained from it.” I said earlier that you can ask for information and you can have every power in the world to ask for information, but the critical power is to compel the information. Why would they come forward? In the year since ICRIR has been going, I do not believe any have come forward. I do not believe anything new has been uncovered. I would just ask what is in it for them. Purely as a lawyer, if I had a client I would be advising them that there is nothing to be gained from going. The immunity was hugely problematic and unlawful, but it was what this was built around and, if that is now gone, why keep the rest?

It is a good question. We need to think really carefully about that aspect of ICRIR that is absent. It is incredibly challenging and difficult, for the reasons that have been outlined. It also comes back to this issue of trust, about how you would get interlocutors to engage with this in good faith, how you would verify the information that was coming forward, what the closed statements would look like, what information was going to be made public and how you would support families through that. The sequencing point I alluded to earlier comes back into play. It is something that needs to be looked at very carefully. There was good reason why the ICIR was included alongside the HIU in the Stormont House model because victims, as we know, want different things. Some want to know the detail of what happened to their loved one. They do not necessarily want to go down the route of investigations. It is important to give choice, but it is extremely challenging and it is not easy to develop a truth recovery process around this. Going back to your question earlier about why we would scrap this and start again, a lot of the heavy lifting on this work has already been done and is there to be revisited if we move away from the ICRIR model, towards the type of model that has been considered at length and has the support of victims.

In my view, yes to both of those, but it does not cure if you keep the ICRIR as it is. Having more people able to refer into a body that is, as I say, fundamentally flawed is not going to help, but if you are setting up a body like the HIU, then having other references in would be important.

Thank you all for the contributions you have made so far. All of you have talked about the positivity of the Operation Kenova process, both within your written evidence and with what you have said today. If that was to be translated or to be carried forward into what the Government will do next, what lessons should they be learning from Kenova?

I am the person who has probably seen it most from the inside, so maybe I will start. What you have to remember is that Kenova was a criminal investigation. It was called in by the PSNI because they were not, in their own view, sufficiently independent to do it. It was simply a criminal investigation. That is what it was. What was different was that there was a truly independent team with no former RUC or PSNI background. What was different was that they were expressly tasked with looking at the theme overall, trying to link all these various different incidents. Because they were an independent investigation, they had the scope to go wherever the evidence took them. They had the power to compel evidence, arrest, interview under caution, et cetera, and send files to the PPS. Ultimately, the difference was that Jon Boutcher, who was appointed, before he did a thing took advice on the human rights framework that he had to set up his investigations around. He spoke to every single person who was involved in his investigations. He instilled confidence and trust. He told them stuff. He explained every single thing he was doing. He told them in advance what he was doing, within reason, and he created such confidence and trust that people who had refused to speak to the police for decades shared information with him. Because they came forward with information and new people came forward with information, he got more information than anybody else has ever got. In terms of the difference between Kenova and one other thing that he ended up taking on, which was the Glennane series of cases, known as the Glennane gang, was that that was not a criminal investigation. I will not go into the details of that, but he was asked to take it on as a review. Because it was a review, he was unable to require information cross-border from An Garda Siochána and there had to be a lot of clever legal stepping and statutory orders and things put in place to enable him to compel information. I saw that as being one of the key differences. This is proof of what a criminal investigation can achieve with a truly independent, properly minded person, compared with a review, even by that properly minded person. He got information one and he did not on the other. Glennane is still going through, trying to get information. It started off with the right appointment and he started off with the right approach. He went to those people most affected. He also instilled trust in serving and ex-officers, who felt that they were going to be hung out to dry with these sorts of things. It can be done, but he had the trust. He built the trust. Once it is lost, I do not know where you go from there.

I had three things. A lot of them echo and overlap with what Alyson has said. The first one is the building of relationships and trust. That is the approach Kenova took and there is a contrast between that and the ICRIR. The second one relates to the practical independence issues and the third to the investigative model. When Kenova was first set up, there was a lot of mistrust, distrust and suspicion, but they took the approach of building relationships, of being something that people could trust and being something that key, independent people could trust. They could then be brought in to independently assess what Kenova was doing in a credible way, in order to allow others to have the confidence to engage with it. With very hard-to-reach and diverse communities and constituencies, they did incredibly well. The contrast with the ICRIR could not be starker. Its approach has been characterised by hubris and not humility. It is more of an approach of, “We are here whether you like it or not.” Kenova, when there was criticism, always engaged constructively and sought to deal with it and accommodate legitimate concerns. The approach of the ICRIR has been to lash out at anyone who criticises it, to the extreme of having a leaflet on its website called “Myths and facts about the ICRIR.” It mispresented the court ruling. It misrepresented the position of the Council of Europe and generally said that people who were criticising it had got it all entirely wrong. To be fair, the Secretary of State did intervene and they have now removed that particular leaflet from the website, not least because it misrepresented the Court of Appeal’s findings around the ICRIR not being able to conduct ECHR-compatible legislation. The approach that ICRIR has taken is not just from the toxicity of the Legacy Act. It is a result of ICRIR’s own conduct since it was established. It has irreparably damaged trust. Kenova, in contrast, managed to build trust with a lot of the same constituencies. The second issue, then, that Alyson has also outlined, is practical independence. Kenova took the decision that it had to exclude, for practical independence reasons, former RUC officers and former military officers. Exactly the same approach is taken by the Police Ombudsman. One package of measures did not take that approach, which was the PSNI Historical Enquiries Team and, as a result, after a very damning inspection by Her Majesty’s Inspectorate of Constabulary, as it was then called, the HET had to be closed down precisely for that reason. HMIC held that you could not have RUC officers in those positions if you were going to afford practical independence of legacy investigations. In some part, the legislation has pushed ICRIR in that direction, but it did not necessarily have to. The legislation requires that a proportion of investigators have previous Northern Ireland policing experience. However, that policing experience could have been drawn from the Kenova investigators moving over. It could have been drawn from the ombudsman, rather than the most recent figures, which show they have employed 10 RUC officers. That was on a self-declaration model for conflicts of interest, which was exactly the same model that was criticised by HMIC in relation to the HET. We have history repeating itself, with a lack of practical independence. That was never a problem for Kenova. It managed to deliver that. The final point is about the robustness of the investigative model of Kenova, using full police powers. The ICRIR has only used its police powers once so far, on the latest figures we have from them. That was the referral from the Secretary of State. It has never used powers of arrest, et cetera. Kenova used its police powers really well to gather evidence and construct very robust and detailed reports but, above all, Kenova knew that agents of the state were not above the law. That is very much the approach that it took. That does not mean revealing the names of state agents who were involved in lawful activity but, where state agents were involved in human rights violations—killings, torture, kidnappings, other actions—they are not above the law and they are not above investigations. Kenova made sure that individuals in that situation were investigated and that is referenced in its final report, because Kenova was not subject to a national security veto in the same way as is built into the Legacy Act for the ICRIR. The contrast could not be starker.

I will not add too much to what has already been said. I think it was Seamus Heaney who said that, when judging a person or a thing, “Anyone with any gumption and a sharp mind will take the measure of two things: what is said and what is done.” What is done, in terms of the practical independence, in terms of the powers being used to get information to families, to desist from cover-ups and so on, is all important. The other part of it speaks to the interpersonal trust, which Alyson alluded to, and the heavy lifting that was done in terms of winning the trust of families. As we all know, that is an incredibly slow and delicate process. It takes an awfully long time. I know this just from my own oral history research. I have interviewed hundreds of people: former security force personnel, former prison officers and former paramilitaries. Building up trust on those sensitive projects takes years, but it can be lost in a heartbeat. Boutcher was alive to all of that. It was the approach. It was listening. It was patience, but it was also the practical independence and the delivery.

Are there any people who worked on Kenova now working at ICRIR, Alyson?

I know of one. I do not know all the individuals. I am aware of one senior Kenova person who moved over to ICRIR.

Daniel, you are correct that the leaflet you spoke about has been removed. Would you have a copy you would be able to send us?

I certainly would.

The core thing that is running through everything we are discussing today is the suppression of information. There is all this complicated architecture and all these different legal processes, but they exist because the people who made victims, state and non-state actors, are suppressing the information. Alyson, you expressed that very well. The bits that have been allowed to work have worked, such as inquests for getting to truth. The reason they took longer is because they were not funded or because layers of information were not disclosed. There is a myth of, “Nothing is working, so we have to bin everything.” We are failing to learn the lessons from things like Kenova. What is the core thing that the Committee needs to understand about disclosure and about removing vetoes? For example, what was in Stormont House on that? Unfortunately, you need to give the edited highlights of it. Secondly, you might comment on the failure to address this properly. In terms of getting the legal processes in place, having some sort of shared way to memorialise, what is all that doing to the rule of law in the present day?

You have to start off from the premise that we are a rule of law society. We are bound by Articles 2 and 3 of the ECHR. There are investigations that never happened or that happened in a way that was not compliant with the rule of law. Those people are still left without answers to, as I say, murder, rape, torture and all sorts of horror that happened. You have to start from the basis that you live up to your obligations and find a way of discharging your obligations. You do not say, “There are too many of these obligations. It is tiresome. It is too expensive. We are going to hide behind our own wrongdoing of delaying for 28 years the answers coming out and now say it is too late for the answers to come out or it is too expensive to get the answers.” That is where you need to start it from. You need to flip this right on its head. What is required legally? What is required morally? What does society expect and what does the rule of law really mean? The rule of law does not mean that those who are strong get to determine it. It means those who are weak get to be protected. That is often understood as well but, in this case, that means discharging legal obligations first and foremost. Some of the money that is going into ICRIR you could put back into an inquest, a coronial system. Sir Declan Morgan said some years ago that he could have cleared the inquests in five years if he was given some money. What was the other point about Stormont House?

It was basically what core things we need to know about disclosure and what mechanisms were in Stormont House.

Disclosure is everything. Partial disclosure over all those years resulted in falsehoods coming out and some people being told their loved ones were terrorists and were shot because they were trying to shoot soldiers or police, for example. That has continued for decades with people being told that and having to live with that. That, in itself, creates a fracture in society and a lack of trust. You have to start by understanding why the information is needed for them. I did not lose anybody during the conflict but, as a member of society who believes in the rule of law, I want to know the information about what the state did. It is not just about the victims and the families, but they must be at the centre of it. In terms of the ability to suppress disclosure of information, I cannot say it any better than Jon Boutcher. He gave a speech that I think he has appended here. That speech said everything you need to know about it. He was horrified by some of what he saw and he was head of undercover policing for a long time. This is not a wet-behind-the-ears human rights advocate. He was horrified by what he saw and he said, “The only way you get over this is to get it all out there.” He only got it out there because he did not have a veto. There was no veto against him but, even with that, he still struggled. You need every power at your disposal.

The Court of Appeal has found that the national security veto over the ICRIR is unlawful, and that is not surprising. It is a power for Ministers to essentially redact information from the reports of what is to be an independent body. That is any information that relates to the UK’s national security interests, a concept that is not defined, or any information that emanates from the security and intelligence services—RUC special branch, military intelligence, et cetera. What we all know this is about is essentially trying to exclude from reports, trying to conceal human rights violations that were conducted by state agents, either through toleration, facilitation or direction of state agents within paramilitary groups to conduct very serious crimes up to and including murder. I know you will not be able to see this much from here, but in a November report, we took the first page of the Police Ombudsman’s report into the Loughinisland massacre—that is what it looks like in the Police Ombudsman’s report—and redacted it in a way that it could be redacted, had the national security veto been in place. About three quarters of the page disappears as a result of the national security veto. That includes all the stuff on weapons importations, all of it based on intelligence information and the actions of agents. We are deeply concerned that the Government have decided to appeal that element of the Court of Appeal ruling. In terms of core messaging, there is no case for a national security veto. Setting aside the issues with the Inquiries Act, which we can debate on another day, for the rest of the package of measures on Northern Ireland legacy investigations for the last quarter of a century, there has not been a national security veto. There was no national security veto over inquests of this form, none over the ombudsman, none over Kenova, none over any of the other types of investigations, none over civil court proceedings. Why would there be a case to introduce one now, when there has not been one for over a quarter of a century?

That is what Jon Boutcher says in his speech. He gave that speech as chief constable of the PSNI. He repeated it then: “What makes us safer is getting this out, no veto.” and he was absolutely adamant about it.

It touches on the bit that we probably will not have time to get into, which is the purpose of part 4. Daniel alluded to this. Why do we have this? It is about controlling the narrative of the past, as was often referred to as stopping the rewriting of history. It was Brandon Lewis, Secretary of State at the time, who said, when explaining that, “That is why we will also set up a major oral history archive. We will also set up an official history,” as it was termed at that point. I suspect we will not have time to get into that today, but I would really be grateful if Members have any information they can share with us as to what is happening in that particular space, what is planned for part 4 of the Act. Motivation is obviously one of the key concerns and it flows from what has just been said about the national security veto and why it was introduced.

You do not have confidence in the information recovery function of ICRIR and you want something old, not new. Reconciliation should be taken out of the architecture of ICRIR. That is what I am hearing. Does that leave us with a judicial and legal process with an indefinite end as our way to deal with the legacy of the Troubles?

Sorry, did you say reconciliation should be taken out?

I am hearing that that is what has been said. My question is, if it is and if we have something old, like the Historical Enquiries Team, whether that leaves us with a judicial and legal process with an indefinite end as our way to deal with the legacy of the Troubles.

It is not so much about taking reconciliation out. Reconciliation needs to be defined and it needs to be front and centre. My problem is the lack of conceptual clarity that Alyson mentioned, which is going to bedevil what flows from that. It is going to be a long process. You do not solve 40 years of conflict—or hundreds of years of conflict, if you wanted to go further back—in a short while. The process of real reconciliation is going to take time, but you have to adhere to the rule of law, provide victims with the right to truth and with the right to effective investigations. If you get that right, the space then opens up to develop mechanisms alongside that, which speak to the patterns and themes that Daniel talked about, to engage historians in broadening out this work beyond that which the courts can accommodate or that which more narrowly framed investigations can accommodate. This brings us all back to the fundamental issue of trust. If you have trust in the bona fides and the motivation of what is being set up, and we are agreed on where we want to ultimately get to, however elusive that idea might sometimes seem, then we do not just throw our hands up in the air and say, “It is just impossible.” It is quite possible to have these things running in parallel, albeit progressing at different paces at different times. We talked in our evidence about thicker and thinner reconciliation. You often have periods of thin reconciliation, which speaks to what Mr Hoare was talking about, not drawing a hard and fast line under the past, but being more forward-facing. It has to have aspects and elements of the thicker reconciliation that we delineated if you are going to avoid intergenerational trauma, which we have not touched on, as one of the offshoots of taking that narrower approach. That is a little bit long-winded. I do apologise.

Sorry to stop you there, but can I say thank you very much? We will have additional questions that we will be writing to you about. Thank you, Anna, Alyson and Daniel.