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Meeting with Nicholas Hurd, Minister of State, in Stormont House

19-08-2019

Ulster Human Rights Watch Advocacy Service is calling today for ‘a completely new approach’ to dealing with the legacy of the past.

The victims and survivors service, which is publicly funded and a registered charity, told the Minister of State, Nick Hurd MP, that proposed measures contained previously in the Stormont House Agreement and recently republished following a consultation exercise by the N.I.O. would serve to ‘launder’ the actions of terrorists and do a great disservice to those who suffered and society at large.

At their Stormont House meeting, Ulster Human Rights Watch’s Advocacy Service Manager, Axel Schmidt, said the government had to re-think its plans on how to deal with the past if it is to avoid an unbalanced and one-sided system that favours the bomber and gunman.

 Mr Schmidt said: “During a positive and productive meeting with the new Minister we set out our view that proposals on a Historical Investigations Unit will be anything but fair. It is unconscionable to think you can have parity between the terrorist and the victim or members of the security forces who, over a period of nearly four decades have protected the whole of society throughout Northern Ireland.

“The present proposal is heavily biased against police officers and will lead to one-sided investigations against the security forces. Security forces keep formal records, terrorists don’t. They can pick and choose to suit their warped agenda and can readily destroy and have done so in the past, any incriminating evidence.

“The inclusion of what is termed ‘non-criminal police misconduct’ means officers could be investigated twice by the proposed HIU. Consequently this means that officers who protected the community against terrorism and have long since retired could be hauled back into the spotlight to be investigated by the HIU, causing, once again, great stress and trauma to both them and their families.”

Ulster Human Rights Watch Advocacy Service also set out the reasons why it is opposed to an Independent commission on Information Retrieval (ICIR) and the Oral History Archive (OHA), which are tailor-made for terrorists to tell their stories without fear of prosecution, and also submitted to Minister Hurd detailed alternative proposals which the organisation believe would be a fair and equitable solution to this intractable problem.

Mr Schmidt added: “The Ulster Human Rights Watch (UHRW) strongly believes that dealing with the legacy of the past requires a completely new approach, with the clear three-fold objectives of upholding the rights of all innocent victims of terrorism, respecting former members of the security forces and strengthening the hand of the State in the fight against terrorism.”

Perpetrators of terrorist atrocities, who have injured, maimed and murdered innocent people could hardly dream of a better status under the law, as to be put on an equal footing with their victims.

Hence, the deep concern following the recently publicised NIO proposals analysis of the 17,000 responses that were received as a result of the consultation on ‘Addressing the Legacy of Northern Ireland’s Past’, which ended on October 5 last.

Among the many issues raised by respondents, two are of particular unease to the Ulster Human Rights Watch (UHRW) Advocacy Service and other victims and survivors groups: the definition of a victim and the unfairness of the proposed institutions, particularly the Historical Investigation Unit (HIU), towards former members of the police and armed forces.

The present Victims and Survivors (Northern Ireland) Order 2006 ‘interpretation’ of a victim and survivor is all the more unacceptable as it runs contrary to the EU Directive 2012 (2012/29/EU) that obliges the United Kingdom to bring its own legislation into compliance with it.

The EU Directive provides a ‘definition’ of a ‘victim of crime’, namely ‘a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence’.

The definition, which also applies to victims of terrorism but excludes perpetrators, has been implemented in Northern Ireland by the Justice Act (Northern Ireland) 2015 (Section 29).

However, surprisingly, the Victims and Survivors (Northern Ireland) Order 2006 has not been revised to keep in step with the Justice Act and consequently appears to be in breach of the EU Directive definition.

This issue must be urgently addressed by the Secretary of State for Northern Ireland as a matter of priority. A review of the Order 2006 providing a definition of a victim of crime, including a victim of terrorism, that is compliant with the EU Directive, in the opinion of the Ulster Human Rights Watch (UHRW), would dispel immediately the confusion that has been maintained for so long between genuine victims and perpetrators.

It would also enable significant progress to be made in dealing with the past in Northern Ireland.

This equivalence between perpetrators and their victims in the Order 2006 is echoed in the proposed Stormont House Agreement institutions by a parity of treatment between terrorists and members of the security forces.

The distrust expressed by many consultation respondents comes as a result of the Historical Investigation Unit (HIU) proposals being undoubtedly biased against former members of the security forces and most particularly against police officers. Inevitability, as a result, there will be an increase in one-sided investigations against the security forces who keep records of their actions which can be accessed and used against them in contrast with the terrorists who don’t keep formal records and destroy incriminating evidence.

The position of former members of the security forces will be made even worse since the HIU will have the power to carry out, not only criminal investigations, but also non-criminal police misconduct investigations.

This will be patently both unfair and degrading for police officers who may be investigated twice by the same body, while terrorists can only be investigated once for criminal activities.

Consequently those who committed themselves to protecting the community against terrorism and have long since retired may be hauled back into the spotlight to be investigated by the HIU, causing great stress and trauma to both them and their families.

Such investigations will, without doubt, generate stories that will disproportionately draw attention to the actions of the security forces while leaving in oblivion the atrocities carried out by terrorist organisations.

Security forces will have limited means of defending themselves against untrue or biased stories being told against them.

In addition their position will be further aggravated by narratives that will emerge from the Independent Commission on Information Retrieval (ICIR) and the Oral History Archive (OHA), which are tailor made, intentionally or not, for terrorists to tell their stories, while protected from any form of prosecution.

There is little doubt that terrorists and their sympathisers will use the opportunity provided by these three proposed bodies, the HIU, the ICIR and the OHA to blacken the reputation of the security forces, justify their engagement in terrorist activities and glorify terrorism with a view to rewriting the history of Northern Ireland.

They will be assisted in doing so, perhaps unwittingly, by the Implementation and Reconciliation Group (IRG) whose mandate will be to prepare the ground for a final report, based on summary reports of these bodies, and to be delivered by academics after a period of five years.

The Ulster Human Rights Watch (UHRW) strongly believes that dealing with the legacy of the past requires a completely new approach, with the clear three-fold objectives of upholding the rights of victims of terrorism, respecting former members of the security forces and strengthening the hand of the State in the fight against terrorism.

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At least not until we get in the legislation absolute certainty, clarity and transparency around the introduction of a pension for victims and survivors of the terrorist campaign that has blighted a generation.

We have seen the headlines, the government assurances given on the floor of the House of Commons as well as the apparent relief that followed. Northern Ireland Office Minister, John Penrose MP, said that while it was right and proper to provide a pension for victims of Troubles-related terrorist incidents, “this should not become a pension for terrorists.”

And for good measure, in a further most welcome contribution, Mr Penrose stated that “there is no moral equivalence between a bystander badly injured in a terrorist explosion through no fault of their own, and the people who manufactured the bomb, placed the bomb and detonated the bomb.”

Why, therefore, is the Ulster Human Rights Watch Advocacy Service not satisfied with what on the face of it, at least, is an unambiguous Parliamentary statement? What has changed since the unfortunate and ill-advised recommendation by the Victims’ Commissioner who refused to close the door to terrorists qualifying for pensions?

Pension parity between victims and the perpetrators of scores of murders, bomb attacks, so-called punishment shootings and beatings, abductions and untold economic damage inflicted on Northern Ireland and Great Britain would be an outrage and an insult. The Urgent Question tabled by the DUP’s Emma Little-Pengelly extracted from the Minister a reply that was required – but only as a first step.

So far, so good or so it would appear.

It’s only when you delve into the detail of the Northern Ireland (Executive Formation) Bill, the legislative instrument, that you find a dearth of detail and certainly nothing that matches the weighty and welcome Ministerial words of Mr Penrose.

In fact, the legislation offers no guarantees whatsoever that terrorists will be denied a pension. The devil is in the detail, specifically Section 3(11) and Section 6.

According to Section 3 (11), the Secretary of State must publish a report before 4 September ‘on progress towards preparing legislation implementing a pension for seriously injured victims and survivors of Troubles-related incidents.’ This is in line with the ‘interpretation’ of victim and survivor in Article 3 of the Order 2006 – an ‘interpretation’ which clearly and intentionally equates the perpetrator with the innocent victim.

Interestingly, Section 3 (14) provides that the Secretary of State must also publish a report before the 4 September ‘on whether the definition of “victim” in Article 3 of the Victims and Survivors (Northern Ireland) Order 2006 should be revised to apply only to a person who is injured or affected wholly through the actions of another person’. A report is one thing, but there is no mention here of progress towards legislation for a ‘new definition of a victim’.

The likely outcome is that on 4 September we will have proposed legislation for a pension and only an opinion as to whether or not the definition of ‘victim’ should be changed. As long as the definition of victim is not changed, there is nothing to prevent terrorists from getting the pension whatever Ministers may be saying along the way.

In the Ulster Human Rights Watch’s view, this is a very dangerous, if not a deceitful, omission. There is a definite requirement for nothing less than watertight legislation to prevent perpetrators from benefiting financially. Bad enough that terrorists of whatever hue should cause such heartache and pain, but it would be an act of unspeakable callousness and a double injustice to victims and survivors if they were to gain in any way from their barbarity.

For these reasons, the Ulster Human Rights Watch Advocacy Service advises against any premature celebration and instead urges all victims of terrorism in Northern Ireland and the rest of the United Kingdom to continue to be vigilant. We welcome the encouraging words at Westminster, but much work remains to be done before 4 September so that the report on the pension for victims will result in the necessary legislation being proposed and enacted, which protects victims of terrorism and does not reward the perpetrators – anything less is not acceptable.

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