Mandate, structure, independence, roles and period of mandate

The Mandate of the Commission

Chapter 7 sets out the case for change and the Group’s proposal for a new Commission, the Legacy Commission. This Chapter explains in more detail the mandate, membership and procedures of the Commission. An independent Legacy Commission would be established to deal with the legacy of the past by combining processes of reconciliation, justice and information recovery.

It would have the overarching objective of promoting peace and stability in Northern Ireland, and its activities and decisions would be guided by that perspective. Its mandate would consist of four strands of work to:

- help society towards a shared and reconciled future, through a process of engagement with community issues arising from the conflict;

- review and investigate historical cases;

- conduct a process of information recovery; and

- examine linked or thematic cases emerging from the conflict.

In the first strand of the Commission’s work, it would identify areas of activity to address society issues arising from the conflict, for example, sectarianism. It would administer funds made available for these specific community needs, which are not being met by other programmes. For this purpose, the Commission, acting through the Chair of the Commission, would work with the Commission for Victims and Survivors for Northern Ireland (CVSNI) through a Reconciliation Forum. This would ensure coordination with the work undertaken by the CVSNI and others in addressing the society issues identified.

In the second strand of Review and Investigation, the Commission would review and investigate historical cases, which resulted in death. It would establish whether there was a realistic chance of prosecution, taking into account the receding possibilities. It would create a new independent Unit which would build on the work already undertaken by the Historical Enquiries Team (HET) and the Police Ombudsman.

In the third strand of Information Recovery, the Commission would seek, after completion of the Review and Investigation, and with the agreement of the family, to provide answers to unresolved questions of importance to victims’ families in individual historical cases.

In the fourth strand of Thematic Examination, the Commission would examine themes emerging from historical cases and the conflict as a whole, for example, a particular area of paramilitary activity, or allegations of collusion. No oral evidence would be taken in the thematic strand until the process of Review and Investigation had been completed in the relevant cases.

A historical case would thus follow a particular sequence through the Commission:

- as a first step, the case would be treated under Review and Investigation. If a prosecution resulted, the case would proceed to trial in the normal way.

- If the review and/or investigation resulted in no prosecution and the investigation was treated as complete, the case would either:

(a) pass into the process of Information Recovery, provided it was an individual case not covered by thematic examination, and provided the family agreed; or

(b) be treated under Thematic Examination, if it related to an important theme or a series of linked cases requiring special examination.

The Commission’s mandate would be for a fixed period of five years.

Structure of the Commission

The Commission would be headed by an International Commissioner who should act as Chair, with overall responsibility for strategic direction and for supervising the work of the whole Commission. The International Commissioner would also have specific responsibility for addressing society issues in the first strand of the Commission’s work.

Two further Commissioners would have responsibility respectively for Review and Investigation, and for Information Recovery and Thematic Cases, subject to the Chair’s overall responsibility. In the event of disagreement between members of the Commission, the Chair’s decision would prevail.

The Commissioner responsible for Review and Investigation would be someone with experience of police or criminal justice processes and thus capable of leading a unit with the equivalent of police powers.

The Commissioner for Information Recovery and Thematic Cases would be someone capable of obtaining the confidence of all participants in the process, including victims and survivors, non-governmental organisations, former members of paramilitary organisations and the security services; and producing independent analysis which promotes both greater understanding of the conflict and reconciliation.

All Commissioners will need to be impartial, capable of handling highly sensitive information, and able to make difficult judgements about the release of information into the public domain. The Commission would be supported by a Secretariat.

Independence of the Commission and Appointment of Commissioners

The new Commission should be independent and this should be set out in statute. The Chair of the Commission should be an International Commissioner. The other Commissioners should be appointed in light of the special qualifications required for their tasks, as outlined above. Much will depend on the quality of the Commissioners.

The Group recommends that the Commissioners should be appointed by the British and Irish Governments. The approval of the Office of the First Minister and deputy First Minister (OFMDFM) should also be sought.

Role of British and Irish Governments and OFMDFM

The OFMDFM would join the British and Irish Governments in implementing this initiative. The proposals would need primary legislation, enacted in Westminster, which would take account of the process of devolution of policing and justice.

To be fully effective, the Irish Government would also need to adopt reciprocal but more limited legislation, as explained later in this Chapter.

The two Governments might also consider whether an inter-governmental agreement is necessary or desirable. The British Government would provide funding. The Group considers that, in light of the Irish Government’s special interest in Northern Ireland and of the fact that the legacy of the past in Northern Ireland is of mutual concern to the Irish Government, that they should make an appropriate contribution towards costs.

Annual reports should be submitted to the two Governments, the OFMDFM, the Northern Ireland Assembly, the British-Irish Council, and to key stakeholders in the work of the Commission. Such reports should contain an overview of the Commission’s work and should not contain sensitive or intelligence information.

Period of the Mandate

The Group’s proposal for a five year mandate presents a demanding schedule, particularly for the process of dealing with historical cases. Families and victims should have the opportunity for their needs to be treated with care, dignity and respect; and for their aspirations for truth and justice to be fulfilled so far as possible.

The Commission will need to prioritise resources to ensure that cases are completed in the fixed period and that the past does not become a preoccupation without limit.

After a period of five years, the need for special institutions to deal with the past will have much reduced. In fact, the Group sees the Commission as a way of bringing resolution to many aspects of the conflict which remain of concern.

The end of the five year period should mark a significant transition from the past to the future. The Commission should submit its final report and be dissolved. It should consider whether further measures should be taken at that stage to draw a line under the past to enable Northern Ireland to move to a shared future.

The Reconciliation Forum, involving the International Commissioner and the CVSNI, should also take the lead in implementing an initiative, at the end of the five year mandate, whereby Northern Ireland, with the support of the two Governments and the Northern Ireland Assembly, should conduct a ceremony remembering the past and all those who suffered during the conflict.