Anne Cadwallader: Bereaved families have a right to the truth
A fair truth-recovery mechanism in the North is vital for Fresh Start deal to work
The Omagh bombing: “Sceptics may doubt whether paramilitary groups will step up, but no one knows where a dynamic process will lead.” Photograph: Frank Miller/The Irish Times
As usual this Christmas, there were private tears and empty chairs at festive tables. Grief permeates like a dull poison down the generations.
Bereaved relatives are almost despairing of seeing a truth-recovery process. In a full-page ad in the Irish News this month, they said politicians in London and Belfast appeared to be waiting for them to “die off”. But “our families will not go away”, they told UK Secretary of State for Northern Ireland Theresa Villiers.
From personal experience, this is no exaggeration. Groups speaking for bereaved families know of many, many examples where children and grandchildren are taking up the heavy burden after their parents have passed away.
Both governments and all political parties accept that families, on both sides of the Border, have a right to an independent truth-recovery mechanism. In failing to provide such a process, the British government is in continuing and flagrant violation of its obligations under the European Convention on Human Rights.
Yet truth-recovery has become the orphan of the peace process despite two energetic and well-meaning attempts to set up independent mechanisms.
The Consultative Group on the Past foundered over the proposed £12,000 “recognition payment” to every bereaved family, with unionists refusing to accept an inclusive definition of “victim”. The Haass-O’Sullivan proposals also foundered, but did spark a discussion that led to the Stormont House Agreement (SHA) of Christmas 2014.
Implementing the SHA was agreed this November in the so-called Fresh Start deal including welfare reform, Orange marches and ending paramilitary activities. But it failed to provide for truth-recovery, to the bitter disappointment of all families, in both communities.
Protestant/unionist and loyalist families are also concerned. There have been claims, with convincing evidence, that RUC officers and UDR soldiers were sacrificed to protect informers.
Anonymity of informers
But the main bugbear is the British government’s demand to veto and censor any information it deems might risk “national security”, a concept it has so far refused to define.
London has pledged to give the proposed Historical Investigations Unit (HIU) access to all files, but the HIU’s reports would merely inform families that vital evidence was being withheld. The evidence itself would be kept secret.
Minister for Foreign Affairs Charlie Flanagan has described this as a “smothering blanket”.
Families also believe it could be used to cover London’s blushes or even criminal wrongdoing by state agents.
Thus the impasse. But the main groups advocating for bereaved families’ rights are pragmatic. Whatever our wish-list, we do not expect London to open all its books for public scrutiny. The secrets held therein may be too horrible for our innocent minds to contemplate.
But bereaved families do expect, and have the right to expect, an independent appeals mechanism compliant with the European Convention on Human Rights.
In a sentence, the director of the HIU, an independent office, should decide what goes into reports, with the secretary of state having a right of appeal should she have genuine grounds for fearing people would be endangered (families having the same right to challenge redactions).
Villiers has denied the national security veto would be used as an excuse for non-disclosure. Instead, she pointed to the High Court as an appeal mechanism which, she said, had often ruled against British government wishes.
The presumption is that she is referring to the existing process of judicial review, already open to anyone with the means to use it, but the Northern Irish Office has yet to clarify this.
It is our experience that many, if not all, families would understandably challenge any decision to withhold information relevant to the death of their next of kin. Hundreds of judicial reviews could therefore be expected.
Will all families have equal access to legal representation? Or will families who do not qualify for means-tested legal aid be forced to abandon an appeal if they cannot finance litigation themselves?
Will families’ lawyers be granted full access to all withheld materials? If not, how can they bring an appeal? With “national security” undefined, how could lawyers get over the first threshold?
Will judicial reviews be conducted in open court or will families and/or the public be excluded?
Sceptics may doubt whether paramilitary groups will step up, but no one knows where a dynamic process will lead. The electorate may not indulge any group that fails to participate in good faith. We have already watched astonished at other logjams being resolved by agreed mechanisms (decommissioning springs to mind) and there is a way around this conundrum.
If the parties fail again, a slow poison will continue to seep into public discourse, damaging the status of both the PSNI and politics.A Fresh Start should not be allowed to disintegrate into a stale finish.
Anne Cadwallader is a case worker with the Pat Finucane Centre