We see that in the detail that has been emerging in recent days.
When you read it, you’ll see that it walks like Haass and talks like Haass; Archive, Acknowledgement, Information-Recovery, Investigation and Victims needs.
They are familiar themes that read back into Eames/Bradley, that can be found in various reports by the Victims Commissioners, ideas that have been developed by academics and that were re-shaped and re-worded in the marathon Haass/O’Sullivan Talks that ran into Christmas and then the New Year 12 months ago.
Back then the parties left the process on two flat tyres – puncturing hope when it came to decision time.
There were no new bikes or wheels in this political Christmas sack.
And, now, the same people are back to the same talking about the same things and at the same time of the year.
That is the same people minus Richard Haass and Meghan O’Sullivan. They found wheels and wings to make their escape.
A few days ago, the Belfast Telegraph stretched a point to make a point when it left a blank page as part of its coverage of the current all-party talks.
So far, there is nothing to report, no new creative thinking, nothing that is outside the usual box and nothing by way of agreements.
There has been some talk about who is going to pay for any structured process on the Past, and how much it is costing in its current unstructured form.
And there is a suspicion that this money argument is an attempt by some to strangle any process that might emerge.
How can we do it if we can’t afford it?
The Past is not about money. It is about will – political will and leadership.
And, while the talking inside Stormont House is being described as “amicable”, there are no agreements.
If that changes, if there is to be a process on the past, then you won’t be shocked by its detail.
Just look and read through the latest paper put to the Executive Parties a few days ago.
You’ll have seen it all before – in one document or another. There is no new wheel, just the same one that keeps turning and going round in circles.
QUESTIONS FOR PARTIES TO CONSIDER BEFORE 12th NOVEMBER TALKS ON ‘THE PAST’
Do you agree with the ‘guiding principles’ outlined in the attached paper? Are there other principles you would like to see applied?
How would you propose to meet the requirement for an effective and efficient investigative mechanism for dealing with the past in Northern Ireland? How should such a mechanism be structured?
Should a mechanism be created to enable the families of victims of the Troubles to access more information about the deaths of their loved ones?
Do you agree that a new approach to the past which included independent research into Troubles related themes / patterns carried out in a structured, accountable and intellectually rigorous way would be preferable to the current position where there is no means to look at the whole picture of what happened during the Troubles?
Do you agree that there is ‘scope for potential agreement’ on proposals to meet the needs of victims and survivors?
Do you agree that there is scope for an agreement on an oral history archive and/or other forms of public engagement on dealing with the past?
‘DEALING WITH THE PAST’ PAPER FOR NI EXECUTIVE PARTIES 10th NOVEMBER 2014
As part of the transition to long-term peace and stability, any approach to dealing with the past should:
- promote reconciliation;
- acknowledge and address the suffering of victims and survivors; and
- be human rights-compliant.
This is likely to require interventions in respect of the criminal justice system, access to information, meeting the needs of victims & survivors more effectively, and facilitating the sharing of experiences.
- the current approach is not sufficiently meeting the needs of victims;
- the current approach is holding back further progress on building a united community;
- controversy over the past can destabilise decision-making in the Executive and damageits ability to deliver effectively;
- the direct costs of dealing with legacy issues are now more than £50m per annum andthis is likely to increase; and
- legacy obligations currently discharged by PSNI and OPONI stretch their capacity to dealeffectively and promptly with the present and are a significant burden on the wider criminal justice system.
Doing nothing would allow the position to deteriorate further.
- A historical archive would be established to provide a central place for people from all backgrounds to share experiences and narratives related to the Troubles.
- The sharing of experiences would be entirely voluntary. Consideration could be given to protecting individuals from libel. Individuals would be able to choose when their contributions would be made public.
- The archive would be independent and free from political interference.
- The Executive would establish a project team to bring forward plans for implementingthe archive by 2016.Implementation issues
- The NI Assembly has the competence to establish the archive and it could be sponsored by a NI department at arm’s length.
- The archive could be overseen by a suitably qualified independent board.
- In addition to Assembly legislation, there may be a need for UK or Ireland undertakingsor legislation to ensure protection for contributors extends across jurisdictions.
- Costs are likely to include a combination of capital and current expenditure.VICTIMS’ NEEDS Possible Agreement
- The Executive would ensure that victims and survivors have access to high quality services, respecting the principles of choice and need.
- This could include actions to implement elements of the recommendations of the Commission for Victims and Survivors’ (CVS) and those in Haass 7, such as:
o A pension for severely-injured victims.
o A comprehensive Mental Trauma Service built into the role of the Victims and
Survivors’ Service (VSS).
o Giving victims access to advocate-counsellor assistance if they wish.
- The NI Assembly and Executive has the competence to take forward the above proposals for changes to victims services.
- The UK and Irish Governments would, in an appropriate context, consider possible statements of acknowledgementCosts are mainly likely to be current expenditure but some capital might be required.
DEALING WITH THE PAST: POSSIBLE NEW STRUCTURES ON JUSTICE AND ON ACCESS TO INFORMATION
- Many victims and families are dissatisfied with the current arrangements for dealing with the past.
- These arrangements are under increasing pressure. The Historical Enquiries Team (HET) is being stood down in less than 2 months. From 1 January 2015, mechanisms for investigating Troubles-related deaths will be severely reduced, resulting in significant financial risks for the Executive and a possible breach of legal obligations
Risks if No Agreement
If no agreed way forward were to be found, there would be a number of inevitable consequences:
- Inadequate investigative mechanisms would result in increased pressure on other parts of the criminal justice system, including the already-stretched coroner’s court.
- Victims and families’ confidence in the criminal justice system would be further damaged.
- There could be a significant increase in litigation against Executive bodies as families and their representatives turn to the courts to press for their needs to be met.
- Consequently, the costs to the Executive of dealing with the past would increase unpredictably and inescapably. Under the devolution settlement, the Executive has the responsibility to ensure compliance with UK obligations in respect of transferred matters such as justice.
- Richard Haass proposed a new Historical Investigations Unit (HIU) which could go some way towards addressing these risks.
- Some variant of the HIU would appear to present a good basis for a way forward. There is scope for the final design to be refined to address concerns, including accountability.
- An investigative mechanism is needed which could command greater confidence among victims and their families than current arrangements.
- Establishing a more effective mechanism could result in lower long-term financial, legal and reputational costs by reducing legal risks.
ACCESS TO INFORMATION
- In recognition of the fact that there are limits to the information that is likely to be obtained from criminal investigations of the available evidence, a number of victims and survivors have asked for an alternative route to obtain information about the deaths of their loved ones.
- Richard Haass proposed a new Independent Commission for Information Retrieval (ICIR) to facilitate families’ wish to obtain information from both the state and paramilitaries. Under his proposed agreement, information provided to this body would not be disclosed to law enforcement and would be inadmissible in court.
- There have also been calls from some victims’ groups for themes and patterns to be investigated.
- There is a finite window for conducting this work as those who may have information grow older.
Risks If No Agreement
- Victims and families would be denied the opportunity to access information via the proposed alternative route.
- Without an intellectually rigorous approach to themes/patterns, current processes are not designed to provide a comprehensive overview.
- Pressures would continue to mount on the criminal justice system and government departments as families continue to press for further investigations, disclosure and inquiries.
- There would be an increase in litigation against Executive bodies as families and their representatives turned to the courts to press for their needs to be met and rights upheld.
- Consequently, the costs to the Executive of dealing with the past would increase unpredictably and inescapably.
- Richard Haass proposed a new Independent Commission for Information Retrieval (ICIR) to facilitate families’ desire to obtain information.
- If it is accepted that a new mechanism for accessing information should be made available to victims and their families, then something along the lines of the ICIR would appear to provide the basis for a way forward.
- While the Assembly could legislate to implement the ICIR, legislation might also be needed from the UK and Irish Governments.
- If research on themes/patterns is to be included in an agreed solution, there would need to be some consideration about whether the content of those themes could be resolved before the ICIR is set up.
- Consideration needs to be given to the relationship with existing processes and to setting a time limit for this work.
By Brian Rowan.