The Commission that I now lead came into being in contested circumstances, and I recognise the hurt that many have felt as a result of the changes in approach to legacy cases. It is not where any of us would want to begin from. But it is the reality of the situation that confronts us. And it is my belief that the Commission represents the first opportunity since the 1998 Agreement to deliver investigations that are compliant with the principles of Articles 2 and 3 of the European Convention on Human Rights (ECHR) for all of those who suffered loss and serious harm during the Troubles. My decision to head the legacy body is therefore rooted in the desire to ensure that the Commission fully avails of that opportunity. Previous attempts to address the legacy of the Troubles may have failed, but I do not believe that means we should simply throw in the towel.

The Act

The UK Government’s Legacy Act has been the subject of much criticism, and it is not for me to defend the legislation, nor to act as its champion. However, one of the supposed criticisms, that the Act provides insufficient detail is, in my view, a significant opportunity. It allows the Commission to develop an approach that can carry out thorough investigations, can give greater involvement to victims and families in its approach, and can seek to reflect the different needs to those affected by deaths and serious injuries during the Troubles.

Since I began last May, meeting with victims, families, survivors, representative groups and others with experience of legacy cases, it has been important for me to hear a multitude of different perspectives and concerns. Reflecting back what I had heard, the Commission adopted three principles to our approach: compliance with the ECHR, respect for the principles of the 1998 Belfast Good Friday Agreement and a focus on providing useful information to those affected by the Troubles.

Alongside embedding a trauma-informed approach in our work, these have been the bedrock of the proposals that the Commission has developed within the broad, and sometimes vague, statutory framework. It was these proposals that we sought feedback on from ECHR experts in Strasbourg, and it was these proposals that were before the High Court in the recent litigation.

As might be predicted from my previous position, I said from the outset of my appointment, that only the Courts can determine compliance with the ECHR. This process is therefore essential to ensure that the Commission can meet our principles of approach. And, if the court holds that something is not compliant, then the Commission would want to amend its approach to meet the requirements.

It was the High Court’s ruling that the conditional immunity scheme within the Act was not compatible with the ECHR and the Windsor Framework, that caught the headlines on the day. But with regards to the main areas of focus for the Commission – recovering information for victims, survivors and families who have suffered loss or serious injury – the Court held that the proposals were capable of complying with the ECHR. And, while the disapplication by the Court of conditional immunity means that one of the tools for the Commission to potentially recover more information is not available, we consider that the other powers at our disposal will be sufficient to carry out thorough investigations, to recover information for families, survivors and victims and to establish the facts of each death or serious injury.

What, therefore, are the elements that we have developed to meet the requirements of the ECHR?

Independence and transparency

The independence of the Commission’s operations has been paramount. The appointment of Commissioners, while formally made by the Secretary of State, has been undertaken transparently and with adherence to independent advice and guidance. The Commissioner for Investigations and the Non-Executive Commissioners were all subject to open competitions, the permanent Chief Executive Officer role is currently being recruited by the Commission’s Board, and a single recommendation will be provided to the Secretary of State. Terms of appointment are set out so we will have a full Board, absent specific grounds for Commissioners leaving their posts. Again, this is subject to transparency and follows the approach of other independent government bodies, such as the Northern Ireland Human Rights Commission. We have published a comprehensive policy on the declaration and management of outside interests and all employed by the Commission are subject to robust assessment. In Dillon and others the Court held ‘the proposed statutory arrangements, taken together with the policy documents published by the Commission, inject the necessary and structural independence into the ICRIR’ (Judgment, para 284).

Framework Document

All organisations spending public money need some form of accountability, ultimately to elected representatives, for use of public resources. The Commission is no different. But this must never stray into operational decisions. Our relationship with government is set out openly in a Framework Document, and our budget for investigations is not controlled by Government, but uses a bespoke ‘Annually Managed Expenditure’ approach where we update the forecast of need, based on what our investigations require, and this is what is provided. That mechanism again is set out publicly. Concerns about premature closure of the Commission are similarly dealt with in the Framework Document, with requirement for the Commission’s advice and a transparent, parliamentary process.

Whether the Commission has the powers and tools to get all the information it requires is crucial to our task. We have police powers, that can be used where necessary, and we can carry out investigations to support criminal prosecutions. We have the power to refer cases to the relevant prosecutor. But, we also have new statutory powers too that are far reaching. We have the right to access all information held by state bodies that we reasonably require for our investigations. This is without redaction, without others telling us something is not relevant, and without obfuscation. It is the Commission that determines what we reasonably require, no one else. There is a corresponding legally binding duty on state bodies to provide the information. In Dillon the court held that ‘having considered the disclosure powers of the Commission and the obligations of the state, in particular, it seems to me this is article 2/3 compliant and an improvement on the situation in relation to inquests’ (Judgment, para 319). We also have the power to require witnesses and individuals to provide information or attend to answer questions and can fine people up to £5000 for non-compliance (five times the fine a coroner can impose).

Feedback surveys

It has been important to me from the outset that the Commission meets with anyone who wishes to share their views and feedback to help improve the Commission’s design and reflect the varied needs of our community. We have set out proposals and carried out feedback surveys. In fact, the Commission is currently carrying out a formal public consultation on key policies within our investigations process – I would encourage anyone who has an interest or views to respond to this to help us improve our approach. This consultation sets out in detail our end-to-end approach to investigating and explains how we propose to involve victims, survivors and families in each stage of the investigation.

It does not end there. We must listen to the feedback and experiences of those who use the Commission and continually update and improve our approach. And in all that we do, a trauma and resilience informed model is essential, so that the right emotional support is given, and people are treated with respect. Again, we are consulting on how the Commission builds on its early design work and are working with a range of expert organisations to design and evolve the best way to support different people’s needs. For me, this human and personal side to the work of the Commission is vital. It builds upon the approach praised by many in Operation Kenova and it takes advantage of the bespoke legislation that allows us to operate in different ways to traditional law enforcement.

The crucial matter for the Commission will be its ability, having made findings, to set out the unvarnished facts of what happened in each case we investigate. Again, there have been suggestions that our reports could be vetoed or prevented by the Secretary of State. This is not the case. I would not have accepted this role if I believed that the findings that the Commission makes could be interfered with by the state. There is a statutory process which provides for the release or non-disclosure of sensitive information which the Commission intends to publish in its reports. This requires the Secretary of State to give reasons; and the Commission would highlight all cases where agreement was not provided. Such ministerial decisions can ultimately be challenged in the courts.

It is also for the Commission to draw on existing judicial practice in public inquiries, litigation and coronial hearings to balance the competing interests when reaching its findings and steer the right course. This may not be easy, but it is my determination that we must make this work.

The Commission is now focussed on preparing to meet with those who might want the Commission to investigate their case from May. Our new approach means that the first weeks and months will be about explaining how the Commission can work for them, obtaining initial information and scoping, and allowing the individual and family the time and understanding to take the decision that is right for them in their circumstances. Our open recruitment for investigators is at an advanced stage, but predicting the number of cases at the start is difficult. We will employ more investigators as cases come to the Commission to meet the demands. We will work meticulously and thoroughly, and will want to learn and improve our approach as a result of each interaction.

While May will see the end of the current approach to legacy cases, it will be the beginning of a new one. While the Commissioners and our colleagues in the Commission have done much to reach this point, it will only be the beginning of the journey, and it is the people of Northern Ireland and further afield who have been affected by the troubles and have unanswered questions that we must keep at the heart of our drive to make this work and to fulfil our public duty.