Joint Committee on Justice, Home Affairs and Migration debate

General Scheme of the Legacy of the Troubles Bill 2026: Discussion

An Cathaoirleach

We have a busy agenda today. I remind members and witnesses to turn off their mobile phones or switch them to flight mode. For the information of members and witnesses, this meeting will be convened in two separate sessions. The purpose of the meeting is to have an engagement with a number of stakeholders as part of the committee's scrutiny of the general scheme of the legacy of the Troubles Bill 2026.

I welcome our witnesses on behalf of the committee. In particular, for this part of the meeting, I welcome from Amnesty International, Ms Fiona Crowley, director of law and policy, Amnesty International Ireland, and Ms Gráinne Teggart, deputy director, Northern Ireland, Amnesty International UK. From the Pat Finucane Centre, I welcome Mr. Alan Brecknell, advocacy support worker. From the Irish Council for Civil Liberties, we are delighted to welcome back to the Houses Mr. Joe O'Brien, executive director, and Ms Emily Williams, policing and justice policy officer. From the Committee on the Administration of Justice, I welcome Mr. Daniel Holder, director. The committee was due to hear evidence from Mr. Mark Thompson, chief executive officer, Relatives for Justice, but, unfortunately, he is unable to attend today's meeting due to the death of Paul Butler. Mr. Butler will be familiar to many here and I express the committee's sympathies to his family. Also attending the meeting are observers from the Department of Justice, Home Affairs and Migration. They are here to assist the committee if any clarification is needed at any time. We are pleased to welcome Ms Anne Barry, principal officer, and Mr. Richard Gow, assistant principal officer.

We will invite each organisation in turn to make an opening statement. We ask our witnesses to keep those to within three minutes, if they can. We will then invite committee members to put their questions in the order in which they indicate to me. This is to manage the time. Being cognisant that we have two separate sessions, I propose that each member have an initial five minutes, and if time allows, we will allow for a second contribution.

Before I invite opening statements, I have to explain some limitations to parliamentary privilege and the practice of the Houses with regard to references that may be made to other people in any evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected pursuant to both the Constitution and statute by absolute privilege. Members and witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with such a direction.

I now invite Ms Crowley and Ms Teggart to deliver their opening statement.

Ms Fiona Crowley

I am the director of law and policy in Amnesty International Ireland, and I am joining the meeting today as this issue is of substantive importance across the island of Ireland and to our global movement. We thank the Cathaoirleach and the committee for the opportunity to make this address today at this important and timely juncture. I will now hand over to my colleague Gráinne Teggart, deputy director of Amnesty International UK in Northern Ireland, to make opening remarks.

Ms Gráinne Teggart

Amnesty International is extensively engaged in work to ensure a human rights-compliant approach to dealing with the past. This includes work at Westminster, with the current focus on the UK Government’s Troubles Bill, which is awaiting Committee Stage on 19 and 20 October 2026. In addition, it includes engagement with relevant committees and mandate holders in the UN and Council of Europe human rights mechanisms. Amnesty International UK was also an intervenor and respondent in the Dillon and others litigation challenging the UK Government’s 2023 Legacy Act.

For decades, we have been particularly concerned with the question of truth recovery in Northern Ireland as an essential element of the duty to investigate human rights abuses, of a victim’s right to a remedy, including reparation, and of combating impunity. Full transparency, genuine accountability and the right to truth have for too long been denied to victims of the Troubles. Decades on, during which time victims and the community have suffered and continued to suffer the denial of the right to know the circumstances of the deaths of loved ones and a pattern of gross human rights violations during the conflict, there must be no further failures on legacy. Amnesty supports the stated goals of the joint framework between the UK and the Irish Governments, which include as central objectives ensuring human rights compliance and securing the individual and collective rights of victims, families, survivors and wider society to truth, accountability and justice.

However, there are several areas of concern in the general scheme, which is to give effect to the goals of the joint framework. Our concerns include the duty to veto requests for assistance that we see in head 6. These are the broadly framed duties to veto requests for assistance and also to veto disclosure of independent commission on information retrieval, ICIR, reports and information provided to the ICIR, which we consider give rise to risks of incompatibility with Article 2 of the European Convention on Human Rights, ECHR, and the individual and collective right to the truth that it protects.

A further concern is taking evidence in private, which comes under head 11. This provides for evidence to be taken in private with a discretion to enable evidence to be taken in the presence of listed persons, which includes “a core participant”. It is not currently clear to us why this head provides for questioning to take place in private. The investigative duty under Articles 2 and 3 encompasses requirements for both victim involvement to the extent necessary to protect their legitimate interests and public scrutiny.

Another area of concern is the ministerial veto power over ICIR reports and their content, which comes under heads 18 and 19. We are concerned that these provisions, and in particular the ministerial veto over disclosure, may be misused to prevent disclosure of information regarding State involvement or complicity in serious wrongdoing and that there are no adequate safeguards. We consider that, in its present form, the provisions give rise to a risk of incompatibility with Article 2 by denying victims and the community the right to the truth regarding serious human rights violations. We are also concerned about the power of the Garda Síochána to enter into agreements with the legacy commission under head 4. We are concerned about the compliance of the legacy unit with the Article 2 requirement of independence in Troubles cases, especially where issues of collusion arise. We reiterate the need to establish an historical investigations unit and independent and effective mechanisms that satisfy the Article 2 independence requirement and secure the public confidence necessary to achieve the aims of the joint framework.

I conclude by stressing that it is imperative that the UK Government’s Troubles Bill achieve human rights compliance, overturn the 2023 legacy Act and enable a much-needed reset on rights and the rule of law. Further change to the Bill is needed for this to happen. Both the UK and Irish Governments have the opportunity to establish a positive blueprint for addressing conflict-related violations. We urge the committee to heed the recommendations in our submission to ensure the general scheme upholds rights and delivers for victims.

Mr. Alan Brecknell

I am grateful for the opportunity to address the committee on behalf of the Pat Finucane Centre, PFC, and Justice for the Forgotten, which has been a project of the Pat Finucane Centre for a number of years. Justice for the Forgotten has provided support to the Dublin and Monaghan families and continues to provide support through the offices of the Pat Finucane Centre and to other victims and survivors in the South.

The PFC has been providing advocacy support to victims and survivors of the conflict for over 30 years. We currently employ six advocates, who all have extensive experience in providing practical support to families engaging with various legacy mechanisms. Over the years, this support has taken many different forms. We have assisted victims and survivors in their call for access to truth and justice and have engaged with all of the ad hoc mechanisms that have been in place over that period. We believe that the best opportunity to access truth, justice and acknowledgement for victims and survivors in recent years was the Stormont House Agreement. These mechanisms were a good starting point to establish organisations that could address victims’ and survivors’ outstanding questions and concerns.

Unfortunately, the last Conservative Government in Britain unilaterally decided to scrap this agreement and put in place mechanisms that were less than what was envisioned, and which did not garner support from political parties on this island, national and international human rights bodies or, more importantly, victims and survivors of the conflict. While the PFC welcomes the joint framework agreement between the two Governments, we still have reservations as to what the final legislation will look like both in Ireland and Britain. There is a well-funded campaign at work within the House of Commons to thwart this legislation and to water down what is currently proposed. We have concerns that these current proposals do not go far enough to address victims’ and survivors’ concerns.

We have outlined our main concerns with the heads of Bill in our written submission. In relation to head 4, we again make the point that we do not feel an investigation that would return to a Garda division would hold the confidence of a family seeking truth and justice in relation to a previous Garda investigation. We are also not sure that, as this head is currently drafted, the Irish State is capable of upholding its Article 2 obligations.

Head 18 is another area of concern. On the face of it, this incorporates a national security element to the proposed legislation. The PFC has worked with victims and survivors over many years, but it has been frustrated by the British state invoking national security in an effort to restrict information becoming available to families and wider society. Many feel this is an attempt to hide direct state involvement in illegal actions or to hide state embarrassment. It is concerning to see these proposals incorporate a similar national security element into Irish legislation.

Mr. Joe O'Brien

My colleague, Emily Williams, and I thank the committee for this opportunity to discuss the general scheme of the legacy of the Troubles Bill. ICCL’s interest and engagement with the pursuit of justice on issues relating to the Troubles goes back to its very foundation and was the partial reason for the establishment of our organisation 50 years ago in 1976. While we welcome the political agreement that was the joint framework on the legacy of the Troubles, published just over a year ago, the commitments by the Government of Ireland at the end of the document are inherently deficient, and these shortcomings are reflected in this general scheme.

The political and now legislative commitments on both sides of the Border remain fundamentally unbalanced. We welcome the proposed establishment of the legacy commission in Northern Ireland. We support our colleagues in the Committee on the Administration of Justice, CAJ, Relatives for Justice, the Pat Finucane Centre and Amnesty International in their proposals for improvements to it and the framework it will operate in. However, our fundamental concern is that for those crimes committed in the Republic, or supported by actions of people in the Republic, there is no plan for a sufficiently robust and independent investigatory mechanism. There were numerous relevant crimes committed during the Troubles on which there are still unanswered questions for the Irish State and its agencies. The legislation, as it is currently proposed, is simply incapable of satisfying the requirement for an ECHR-compliant, independent investigation in these cases.

This could, and should, have been an opportunity for the Government to shed light on some long-darkened corners of what was done in the Republic during the Troubles, and most importantly, to ensure that victims and survivors feel that all State agencies and actors are being fulsome about the reality and truth of what did or did not happen. This legislation, if progressed as it is, will leave us without any systematic legacy investigative process in the Republic. We continue to advocate for the establishment of an independent historical investigations unit that would meet the required standard.

The other major shortcoming, which has been echoed by our partners here today, is the national security veto, but especially the way it is constructed. Two potential routes for the full facts of what happened in legacy cases to travel must be approved by the Minister for justice. When there is a request for evidence from Irish State bodies, including An Garda Síochána, officeholders or former officeholders, the Minister can intervene on the grounds that answering those questions could be prejudicial to sovereignty, security or the very broad reason of essential interests of the State. There are somewhat narrower grounds for the potential for vetoing a family report by the ICIR. Nevertheless, the committee will appreciate the concerns of victims that the veto has the potential to serve as a means of protecting and concealing wrongdoing or failures and of ultimately being used for institutional and reputational protection. We believe that the risk of these veto powers can be minimised by requiring an independent judge, rather than the Minister, to make decisions as to what information goes to the legacy commission or to families.

I am aware that my time is limited, but we would like to come back in later to share experiences that others and I have had of dealing with the Garda Síochána Troubles legacy unit and to make some points about the legislative context.

Mr. Daniel Holder

I thank the committee for the invitation. The Committee on the Administration of Justice is an independent human rights organisation based in Belfast. We are the sister organisation of ICCL. CAJ has a long-standing body of work on legacy legislation and policy, including UN and Council of Europe engagement. CAJ has academics on its board who drafted an unofficial model implementation Bill for the UK legislation under the Stormont House Agreement in 2014 after that agreement had been signed. In the era of the UK legacy Act, following the statement by the then Tánaiste, Deputy Micheál Martin, in September 2024 that substantive root and branch reform of the Independent Commission for Reconciliation and Information Recovery, ICRIR, legacy body - the body set up by Boris Johnson's Government's legacy Act - was required to ensure ECHR compliance and public trust, we published a report in November 2024 report assessing the viability of root and branch reform of the ICRIR.

Recommendations in that report are reflected in the two Governments' October 2025 joint framework. Prior to that, as has been alluded to by other witnesses, the CAJ, jointly with the ICCL, published a joint report in February 2025 focusing on legacy investigations within this jurisdiction. We identified gaps in the architecture in the State that would ensure ECHR-compliant investigations and advocated for an independent investigations unit along the lines of the historical investigations unit, HIU, that had been agreed for the North in the Stormont House Agreement. That is not covered in the joint framework and, consequently, in the present general scheme, which leaves us just with An Garda Síochána and Fiosrú, which has not engaged in legacy investigations despite its remit.

It is worth saying that the 2025 joint framework returned us largely to the architecture of the 2014 Stormont House Agreement, including a legacy commission and cross-Border ICIR as well as some inquests and pseudo-inquests. Of course, Boris Johnson's Government reneged on the Stormont House Agreement in 2020 to instead pursue the immunity agenda of the legacy Act. That led to the Irish Government commendably taking an interstate case. However, that was not the first time that the Stormont House Agreement's implementation had been derailed on the British side. At a much earlier stage, it was derailed by the insertion at that point by the UK of a ministerial national security veto provision in the draft legislation. Since then, it has become abundantly clear and beyond doubt that the purpose and effect of that veto is to empower UK ministers to conceal the involvement of state agents in conflict-related killings. Successive UN experts have cautioned that such use of a veto will be incompatible with the ECHR and UN obligations to the right to truth. A state cannot conceal the involvement of state agents with killings. Charlie Flanagan, who was the Minister for Foreign Affairs and Trade at the time of the Stormont House Agreement, made clear that that was the blockage and stated it was not acceptable that a smothering blanket of national security should on all occasions be used in the manner we have seen in Northern Ireland over a number of years.

That national security veto was incorporated into the legacy Act. It has now been replicated in the UK troubles Bill. In all our international work, we have not come across a single other state that has a national security veto such as the model that has been put by the British into both the legacy Act and troubles Bill. However, if this general scheme goes through, and I refer to head 18 in relation to the ICIR and other provisions with respect to the acquisitorial proceedings, then we will actually have a second state, in Ireland, that is essentially replicating what seems to be a unique British model of national security veto that has faced very heavy criticism from UN experts in a transitional justice context.

We welcome the joint framework as a positive development but think that a substantive rethink is needed on the national security veto provisions. We are also conscious that this is, of course, a parallel legislative process. We do not know what the final shape of the UK troubles Bill will be until it completes passage in the UK Parliament.

I thank the committee.

An Cathaoirleach

I thank Mr. Holder. He has kindly agreed to answer any members' questions about the Relatives for Justice submission in the absence from the meeting of Mark Thompson. I point to that.

We will now move to interactions with members. I ask members to keep to the timeframe for contributions and responses. The limit is five minutes. I call Deputy Ward.

Deputy Mark Ward

I thank the Cathaoirleach for letting me in. I apologise to the witnesses but I will have to leave because I am due to speak in the Dáil on justice legislation that is scheduled for today. We have said it before, but justice legislation should not be scheduled for discussion at the same time as the justice committee is sitting. We cannot be in two places at the same time. I apologise, but I will have to leave.

I have a couple of questions. The first is for the benefit of the committee and for my benefit. Will the witnesses describe what the national security veto would mean in real-world terms for families seeking answers about the death of a loved one? How might it impact their ability to obtain information, establish the truth and have confidence that the process is genuinely victim-centred? Any or all of the witnesses may wish to respond. I would be interested to hear from them.

Mr. Alan Brecknell

May I say something first? As I pointed out during our opening comments, we have worked with a number of families in the North in numerous different investigative and truth-seeking mechanisms and one such family was the family of Sean Brown. During that process, the British Government requested numerous public interest immunity, PII, certificates to be granted and this page I am holding is what the family got back. The file had 58 pages in it and there were 58 pages as redacted as this one.

Deputy Mark Ward

Every one was redacted.

Mr. Alan Brecknell

Every one of the 58 pages was redacted. That was one file. There are 30 other files and there are numerous other pages and parts of pages that are redacted. If we are going to go down the road of following the British Government's legislation, this is what this Government could be doing. This is what this State could be doing. If that is where we are going in Ireland, we need to have a long rethink about where we are going and what that actually means.

On the sorts of information that have been withheld from families, I understand that there are Article 2 and Article 8 issues relating to the right to privacy and things like that. However, it comes down to covering up for the misdeeds and wrongs of others. That is the only thing that we can see being done in the North at the minute. That is where the big difficulty with national security is. It is now 50 years on in an awful lot of these cases. If the British state, or the Irish State for that matter, is relying on national security with regard to incidents from 50 years ago, we are in a very sad place.

Deputy Mark Ward

I thank Mr. Brecknell. Do any of the other witnesses want to come in? Perhaps they have different opinions.

Mr. Daniel Holder

From what we know so far, because of the package of measures, that is, the legacy investigations that did take place in the North until they were closed down by the legacy Act, one of the principal patterns of state human rights violations was precisely what is usually termed "collusion". We are talking about the use of state agents within paramilitary organisations and their toleration, facilitation and direction within the context of the most serious of human rights violations, including torture and killings. A family has a right to know whether the state was involved in the killing of their loved ones. It has become abundantly clear that the purpose of the national security veto is to enable ministers to conceal that.

In similar terms to the Sean Brown case, we acted in the Thompson case for Eugene Thompson, brother of Paul, who was murdered by loyalists in the 1990s. There were all sorts of evidence of state agent involvement. Ultimately, while we won in the High Court and the Court of Appeal in Northern Ireland, the UK Supreme Court sided with the UK ministers that they could conceal in an inquest context intelligence information that clearly related to the involvement of state agents in the killing. We know, of course, that was the case with Sean Brown because the coroner made clear that the intelligence information linked a number of state agents to the killing and the UK Secretary of State then judicially reviewed the coroner to argue that he had no power and should not have disclosed that. It is blatantly obvious what this veto is being used for.

The other point is that it is difficult to see what legitimate basis such a blanket veto could have. There was no national security veto over most of the elements of the package of measures, including legacy investigations, police ombudsman investigations, civil court hearings and various other mechanisms. None of the difficulties that are put forward that somehow require this sort of nuclear option of a national security veto has ever arisen. What problems did the absence of such a veto create previously? This is something new. It is something new that has been created in the context of patterns of collusion becoming increasingly apparent because of legacy investigations and a deliberate intention to shut them down. No such practices have been revealed in investigations in this jurisdiction, which queries even further what the need is for such a national security veto.

Mr. Alan Brecknell

May I add something briefly for this committee and something practical that can be done? We are proposing that an independent judge make the decision about what is vetoed or not and to take it out of the political realm, take it out of the area of discretion and the potential risks that we have outlined.

Ms Gráinne Teggart

I will start with that point. One of the recommendations in our submission relates to the removal of the veto power of the designated state bodies and a requirement to seek consent to ask former officeholders questions. If we go to an independent judicial decision maker on the basis of very strict criteria, that obviously adheres to Article 2 and international law.

I want to go back to what is in the general scheme. If we look at the statutory concepts that Mr. O'Brien has already mentioned, like sovereignty, security and the other essential interests of the State, they are very broad and undefined and there is no requirement for the asserted prejudice to be balanced against, for example, the public interest. The decision to refuse the request is taken based on the opinion of the head of a State body that could be implicated, obviously, in the wrongdoing. They are very obvious points that would need to change.

Amnesty was an intervener in the Dillon and others litigation, as I have mentioned. Our concern and that of victims, as has been mentioned, is that the national security veto will be used to conceal the direct involvement or complicity of State agents in killings, as we have seen in numerous cases. The Northern Ireland Court of Appeal, in the Dillon and others case, considered that victims were right to be concerned, given the context of how delays have actually come about in the provision of relevant material by state agencies. In our view, the Court of Appeal was referring to extensive evidence of deliberate and systematic efforts by agents of the state to obstruct truth and accountability. When we see this model, that would be the concern for this jurisdiction also.

Deputy Gary Gannon

I thank the witnesses for being here today. My first question relates to confidence and the potential for an erosion of confidence in this legislation. All of us who watched events over the weekend saw what can happen when confidence in systems is eroded. My question is directed at Mr. Brecknell, but the other witnesses can respond, too. In a scenario where a family hears that an Irish Minister may prevent information being supplied or may remove material from a report, what does Mr. Brecknell anticipate that would do to confidence in the process?

Mr. Alan Brecknell

First and foremost, an awful lot of the families in the North, from a nationalist perspective, put a lot of stock in and seek a lot of support from the Irish Government and the Irish system. If a group or an Irish Minister is seen to be withholding information in a similar way to what has happened in the North, that can do nothing but erode confidence, not just in the support they are getting from those south of the Border, but in the whole process itself. We need to understand that 30 years after the Good Friday Agreement, we still do not have trust in a process that is going to lead to truth, justice and acknowledgement for families. We have tried numerous different things across the years, including the historical inquiries team in the North. There has also been the Stormont House Agreement and there have been lots of other attempts at it. We have to be honest and say that we coming to the last chance saloon, given the age profile of the people we are dealing with here. I am sorry to go back to the Brown case again but Bridie Brown is an old woman and that is the age profile of some of the people we are dealing with here. More than half of the people were killed before 1976. We have to bear that in mind. We do not have forever to do this. We need to start putting things in place now. To go back to the Deputy's question, the Irish Government needs to stand in behind people, as it has done in the past, in relation to the challenge to the legislation in Europe. That needs to stay until such time as there are ECHR processes in place that can work for families, victims and survivors.

Deputy Gary Gannon

My next question is for any of the witnesses. If a case concerns an earlier Garda investigation or an allegation involving Garda conduct, can an investigation returning to a Garda division meet the independence required under Article 2? What institution would be established here instead? The witnesses may have already answered that second question.

Ms Emily Williams

I am happy to take that. I thank the Deputy for his question. For us at ICCL, it is our position that having a Garda division involved that was originally responsible for the investigation would not meet that standard for independence that is required under Article 2 of the European Convention on Human Rights. That is why ICCL and CAJ proposed the establishment of an independent historical investigations unit. That proposal, as we have heard, has been echoed by the other witnesses here today. This would be an independent body tasked with reviewing and investigating Article 2 and Article 3 cases, those being, cases involving the loss of life or acts of torture. This body, as inspired by the Stormont House Agreement, would meet the independent standard required by the ECHR. In terms of adequacy, which is also an ECHR standard, we do not believe that an investigation by gardaí in the Garda division would be able to identify who was responsible, as they would not have that level of independence.

Deputy Gary Gannon

This is my last question. If a former officeholder holds crucial information, why should that person be able to avoid questioning simply by refusing to consent? Maybe the Department could explain why that provision was included in the Bill.

An Cathaoirleach

Are any of the departmental officials in a position to answer that?

Ms Anne Barry

In relation to retired officeholders, including members of An Garda Síochána, the position is that they are retired. They are private citizens and they cannot be compelled to assist an inquiry established in another jurisdiction or assist, for example, under the scheme, the inquisitorial mechanism that might be established by the legacy commission. They are, of course, free of their own volition to attend before an inquiry established in the other jurisdiction or to attend before the inquisitorial mechanism, when that might be established by the legacy commission, but they cannot be compelled to do so. The approach in the scheme is to provide a means by which their evidence can be taken in this jurisdiction, before the High Court, should they wish to participate in that process.

There is a consciousness, given that we are dealing with legacy issues, that many of the former members who may have information of assistance will be retired. The approach has been to provide a mechanism by which they can assist, should they wish to do so.

Deputy Gary Gannon

But only by consent, if they wish to do so. Does anyone else wish to respond?

Mr. Joe O'Brien

It is worth referencing the Omagh bombing Inquiry in relation to this as well. We are copying the model there and the lead counsel within that inquiry, Paul Greaney, has flagged, in a very reasonable way, how that process is deficient. Naturally, as any good lawyer would, he wants to question someone live and in-person and he has flagged from the outset that this is a problem. It is a problem in terms of getting at the truth and we are replicating that in this.

Senator Anne Rabbitte

I thank all of the witnesses for their opening statements. My first question is for Mr. Brecknell. Based on the experience of the victims and survivors that he works with, what would give families confidence that Troubles-related cases involving allegations concerning An Garda Síochána were being investigated in a genuinely independent way?

Mr. Alan Brecknell

If we are going to deal with this in any meaningful way, then any investigation of An Garda Síochána needs to be taken away from gardaí completely. For anything to be Article 2 compliant, it needs that level of independence. It has to not just be seen to be independent but to actually be independent of any Garda division. I reiterate what others have said here already in relation to investigations going back to the same division. We work closely with the family of Eddie Fullerton. I know, having spoken to them recently, that they would not want to see Donegal gardaí reinvestigating what happened to Eddie Fullerton. I can only give answers based on what people are saying to us and that is what we need to see. We need to see something that is completely independent of An Garda Síochána. If the Ombudsman in the South is capable of doing that, well and good, although I know there are issues there as well at the minute. It needs to be completely independent. It needs to be seen to be independent, as well as actually being independent.

Senator Anne Rabbitte

The next question is for Mr. O'Brien. He has proposed that decisions to withhold evidence on national security grounds should be taken by a High Court judge rather than by a Minister.

How would that mechanism work in practice and what information would the judge need to conduct a meaningful necessity and proportionality assessment?

Mr. Joe O'Brien

I will pass the question to my expert in the area of the practicalities, Ms Williams, but it has been done so it is not a new model. Will Ms Williams elaborate?

Ms Emily Williams

I thank the Senator for the question. In terms of practicality, it would be a similar process to what the Minister is doing right now. Right now, in terms of the Independent Commission for Information Recovery, ICIR, when there is a family report drafted then it is sent to the Minister to review and make sure there is nothing in there that would jeopardise national security. There is no definition of national security provided in the Bill to guide this analysis, so we propose that, rather than the Minister do that, it would be then sent to a High Court judge who would be able to balance this on the grounds of necessity and proportionality.

It is important to note that human rights law provides a rather narrow definition regarding national security, where national security concerns arise in cases where a country's existence or territorial integrity is jeopardised, such as an unlawful use of force or violent incitement to overthrow the government. This is a rather high threshold and the High Court judge would be looking at the information based on this standard and assessing whether the information in the report would meet that, which would probably be unlikely.

Deputy Catherine Callaghan

I thank all of the witnesses for being here today and bringing their great testimony. I was struck by two things from the opening statements and submissions. Who gets to decide when the information is being withheld? Are those arrangements sufficiently independent? I think the witnesses answered that and even in the last contribution said the arrangements need to be both seen to be independent as well as being independent. I have to be very clear about that. Will the witnesses say in plain English what is wrong with the current proposal and what might they replace it with to ensure that it is as independent as it can possibly be? That is my first question. I will try and get all the questions out at the start if that is okay.

Several of the contributors mentioned a separate historical investigations unit. I am curious as to what that would look like.

Once again, in terms of the veto on national security, within the heads of the Bill currently, there is security, sovereignty and other essential interests of the State. They appear to be quite broad legal terms. Do the witnesses think that they need to be more clearly defined in legislation beforehand? If national security information genuinely cannot be disclosed publicly, should there be a legal mechanism to allow a judge to examine that information independently without making it public? I know a contributor has said that already. Do the witnesses think that would be acceptable?

To the Department, if a family is told information cannot be released because of national security, will there be an independent mechanism put in place so that families can be allowed to challenge that decision?

Mr. Daniel Holder

First, we do not think there is a need for a national security veto provision at all. None exists at the moment. What is the problem that it is there to address because, no problem has arisen in the absence of one? None existed over all of the legacy investigations mechanisms in the North when they were implemented under the package of measures. Things like inquests, the PSNI investigations, the Caldwell investigations, Police Ombudsman investigations and, up to the point of the Inquiries Act, public inquiries as well. No national security veto existed without problems being there, so there is not really a need for such a veto at all. You can, of course, argue that there is a risk of certain legitimate things that investigative bodies should not disclose. One obvious example would be the lawful and legitimate covert methodologies of the security services should not be disclosed in an open forum. However, there is no example in a legacy mechanism of someone running such a mechanism having been so foolish as to actually do that. It just never happens. That is the first thing.

If you are going to have a mechanism, there are the two questions that the Deputy alluded to, one of which relates to the decision maker, which we would have always argued in the North is the body itself. We appreciate there is a difference here because this is information transferring between jurisdictions and the proposal is for a judge to do it. Second, is legal certainty over the criteria. You could have a positive criteria that it is just certain categories of information like methodologies and nothing else can be excluded. You could have a negative constraint built into legislation, and there are some amendments to the UK Act that would do that, that states something cannot be used to conceal state involvement in human rights violations and agent involvement in sexual violence , etc.

Deputy Catherine Callaghan

I am really conscious of conscious of the other questions, particularly the historical investigations unit. I do appreciate that answer, if anybody else had anything to say.

Ms Emily Williams

I am happy to take that question. We see a historical investigations unit as a separate investigatory body which has police powers to conduct independent investigations into certain Troubles-related cases, but it can also be for non-Troubles related cases, for example, the case of the Sallins train robbery. We see this mechanism as necessary as there has been no substantive legacy architecture in the State to date to conduct these types of investigations. The approach has been very piecemeal, so we feel that in order for the State to meet its requirements under articles 2, 3 and 13 of the European Convention on Human Rights, we need such a body. We do not envision this body to run forever. It could be proposed to run for maybe a period of five years to make sure it has the time needed to conduct these investigations to the ECHR standards.

Deputy Catherine Callaghan

It will not be a permanent body. I might just ask the last question then to the Department.

Ms Anne Barry

In relation to the approach in the scheme to national security, the provisions do build on the legislation from 2019 which provided for the provision of assistance to UK Troubles-related inquests. Then we see the same provision included in the Omagh inquiry Act which was enacted earlier this year. The Government's intent is to assist UK legacy processes to the greatest extent possible. However, it remains the case that there are legal complexities with Ireland as a sovereign state assisting processes in another jurisdiction and that it is necessary to provide a means by which the essential interests of the State and the rights of citizens can be protected. That is the backdrop to the provision in the scheme and, as I said, it does replicate provisions in other Acts that have been enacted by the Houses of the Oireachtas.

Insofar as national security is concerned, the test that must be met is that prejudice is likely to occur. The Minister has made clear during the passage of the Omagh inquiry Act that that provision would be approached with great care and that it would not be a provision that would be used to cover up abuse or anything that might be of embarrassment to the Government. It is essential to have it there. While the head of the body forms the opinion in the first instance as to whether acceding to a request for assistance might be or would be prejudicial to the security of the State, the provision then for the consultation with the Minister is in fact considered to be an important check, or an important safeguard, if you like, whereby the head of the body has to set out his or her case to the Minister and the Minister takes a view. As I have said, the Minister has said before the Houses that that would be a very careful consideration and would be used for proper reasons. Of course, the reasons for the refusal to accede to a request would have to be set out in writing to the inquiry or to the inquisitorial mechanism, so that brings a level of transparency.

Deputy Catherine Callaghan

The question was whether it was deemed to be suitably independent.

Deputy Tom Brabazon

I thank you everyone for their presentations. On the national security question, I take the point that it is not defined in the legislation and a definition of it would be very beneficial.

In terms of the alternative mechanism that has been proposed by the witnesses, which is that a judge, a High Court judge would be the decision maker, High Court judges are used to dealing with evidence, either direct oral testimony or evidence on affidavit, and that to me would then create a whole additional layer of requirement for court rules and a determination as to how those hearings might be held, either in camera basis or open to the public. That gives rise to a potential for appeal. If a High Court judge made a decision and one party did not like the decision, there would have to be an appeal against that decision. Then you would be going to the Court of Appeal and potentially to the Supreme Court in this jurisdiction. It does become quite complex very quickly. What is the alternative proposal?

Does it deal with any of those points?

Ms Emily Williams

I thank the Deputy. I can take that question. If I understand his question correctly, there are already procedures in the Bill for the High Court to be the place where the evidence is taken. It is our proposal that a judge of the High Court is equipped to do this balancing exercise. We understand the Department's position that it is quite challenging in terms of facilitating co-operation with another jurisdiction. However, we firmly believe that the power as to whether such information should be refused should rest with a member of the Judiciary rather than a member of the Executive, currently the Minister for justice. We believe there is a procedure already in the Bill that can facilitate a High Court judge taking this.

In terms of appeal, there is no mechanism for appeal at the moment. There may be good reason to introduce appeal provisions, particularly for victims. As the Bill currently stands, it is unclear whether victims will receive a decision on why information was refused to be disclosed on national security grounds, for example.

Deputy Tom Brabazon

Okay. Does anybody else wish to respond?

Mr. Daniel Holder

I will just say that the tighter the criteria, the more legal certainty and the easier it will be to make decisions. As has been suggested, if there is a definition of national security or at least categories of information that can be included or excluded, then that will increase the legal certainty of any decision maker making a decision and make it much less complex, because the more blanketed it is, the more difficult it becomes.

Deputy Tom Brabazon

In terms of national security, the witnesses have stated their position is that they do not favour this provision. Even if it were to be enacted, do they foresee many instances of it being used in practice, given in particular the passage of time since a lot of these events?

Mr. Daniel Holder

In terms of our experience in the North, it is used relentlessly all the time to restrict disclosure of information. The other witness, Mr. Brecknell, held up the public interest immunity stuff before where the page was entirely blanked out, and it is quite common to have that happen. An amount of information is excluded on all sorts of incidents, including those involving children killed by plastic bullets, where files are sealed, information is not disclosed and there is an amount of obstruction to investigations on national security grounds, including the recent Operation Kenova inquiry, which details quite a lot of the obstruction it faced within its own final report. That means that it has been commonplace and it has really dragged down legacy investigations and been one of the key focal points.

Deputy Paula Butterly

I apologise for my tardiness. I have just two questions and it is open to anybody to answer. Are there any concerns that the process is designed to protect the interests of the states rather than deliver for the families? If the witnesses have concerns, what are they? Second, do they believe that stating "as soon as practicable" is sufficiently strong or should the Bill include a specific time period?

Mr. Joe O'Brien

The construction of it could certainly facilitate the State protecting agencies in the past. I take this opportunity to flag issues that have been raised with us in relation to the legacy unit. This is part of the response under the joint framework as well. I want to quote one of the people who has been in touch with us. I refer to Brendan Hayes, whose father John Hayes was killed in the Dublin Airport bombing. He cited to me the continuing lack of help from the Garda. He said it is extremely difficult to get a response, let alone any meaningful information. Their liaison officer did not reply to his request for information to the point where he had to copy the Commissioner into the emails. He said he was informed last week that a DPP file does not exist. It took them almost a year to tell him that. He asked them what files they do have and what we have to do to get access to them, but he received no response. He said he will copy the Commissioner into the request again next week. He said that being treated like this is demeaning and it is having a severely detrimental effect on his mental health.

Another person who has been in touch with me is Seán O'Brien, a former prison officer. He also cites huge difficulties in getting an adequate response from the legacy unit. This is the immediate response, even before the legislation is done. The legacy unit has been set up. I want to cite my own experience as well in trying to engage with the unit. In June of this year, I received a call from an individual who believes they have identifying information about individuals involved in what was very clearly a Troubles-related murder in the 1980s. The individual whom I spoke to had tried without success to contact the legacy unit with this information. I subsequently wrote to the unit in June about the interaction I had with this man, clearly stating that it was potential information in relation to a murder, yet I have received no response to date. I just wanted to put that out there because a number of people wanted me to raise the fact that the Garda legacy unit is not really setting a good standard if we are talking about transparency and openness in terms of legacy.

An Cathaoirleach

I thank Mr. O'Brien for that.

Deputy Paula Butterly

Does anybody else wish to respond?

Mr. Daniel Holder

Our experience is that with disclosure provisions, the powers need to be as strong as possible. Stipulating both a time period and potential penalties for non-compliance is the best way of ensuring compliance with disclosure obligations.

Deputy Paula Butterly

The fact is there is no specific timeframe. The reference is to "as soon as practicable". Is that sufficient? That could be five years, ten years, 20 years or any time into the future. Is that sufficient or should we have a specific timeframe?

Mr. Daniel Holder

A specific timeframe would be more appropriate.

Deputy Paula Butterly

What kind of timeframe?

Mr. Daniel Holder

I am trying to look to my colleagues here as to what a usual timeframe would be. It depends what category of documents it is. It could just be 28 days for the handing over of documents. There is another strand to this as well, which is allowing an independent body access to documents. That would be direct access to documents rather than having to go through such a process, but of course that would involve the model that a number of us have promoted here today, which is to have a specific historical investigations unit within this jurisdiction that has direct access and therefore could mitigate against a lot of the issues of delayed disclosure.

Mr. Alan Brecknell

I will reiterate the point I made earlier. We have to bear in mind the age profile of the people we are dealing with here. If the term says "as soon as practicable", that could take ten years. We have spent numerous times in courts in the North. I am sorry if I keep referring to that but that is where I have my experience. We were in again on the Sean Brown case. The coroner in that case ended up micromanaging the process and asking the barristers for the state what they have done up until 5 o'clock today, every single day, to get the information to the coroner, not even to the family, to progress that inquest. If people are given leeway with time, they will take leeway with time. I would make it as short as we possibly can. I appreciate that there are time constraints on people, and while we only have a certain number of hours in the day, we need to bear in mind the age profile of the people we are dealing with.

An Cathaoirleach

I thank the witnesses. Does Deputy Butterly want clarification from the Department in respect of that time?

Deputy Paula Butterly

Yes, perhaps.

Ms Anne Barry

I suppose the challenge is not knowing the scale of the request, for example, from the chairman of an inquiry or from a judicial panel member who is leading the inquisitorial mechanism set up by the legacy commission when that is established. It is that it is not possible to know what the scale of the request for assistance will be, so putting a time limit in place without knowing the scale is somewhat difficult. I suppose that is why "as soon as practicable" has been used.

Deputy Paula Butterly

That is exactly as Mr. Brecknell had said. The purpose of the question is because there is a certain age profile here to consider. More work could be done by the Department to assess a hypothetical situation or something so that we can allow a timeframe, be it two years, three years or whatever. That brings me back to my first question as to whether we are there to protect the interests of the State or to actually deliver for the families. Perhaps that could be considered by the Department.

Ms Anne Barry

Potentially. It is not a question of years. We are talking about a question of weeks and months as distinct from years.

Deputy Paula Butterly

People have waited years.

Ms Anne Barry

The bespoke mechanism under the 2019 Act in relation to the UK Troubles-related inquests has worked successfully.

We are replicating that process to an extent in this scheme, with some additional features that allow for more participation by survivors and families. The will is there on the part of the Government, the Garda authorities and other Departments to respond to requests for assistance from these mechanisms as quickly as possible. Certainly in the case, for example, of the Omagh bombing inquiry, dedicated resources have been put in place. We have heard counsel to the inquiry at the evidential hearings, which started last week, saying that there was a meaningful relationship of co-operation with the Department and the Irish authorities and saying that there had been substantial disclosure to the inquiry. That is evidence of the will of the Irish authorities, insofar as far as Omagh is concerned and past legacy processes, to try to assist as quickly as possible.

Deputy Paula Butterly

Will the Department go back and really consider putting a specific timeframe in there?

Ms Anne Barry

We will await the report of the committee and the Minister will then consider the committee's recommendations.

An Cathaoirleach

Before I bring Senator Stephenson in, I will ask a few questions. The first is in respect of the legacy framework and the attempts by the British previously essentially to provide immunity for state actors who had been operating in the North. Are there any concerns around special protections, procedurally or otherwise, that are in place around state actors at the moment? If so, is there a potential impact on the confidence of other victims to engage in the process?

Mr. Daniel Holder

There are a number of areas of concern with the existing Bill. Of course, we are waiting to see what the UK Government's amendments are. We want further clarity on the provision that the new legacy commission in the North should not repeat previous investigations unless it is necessary to do so. We think that really needs to be clarified. Clearly, no investigative body is just going to repeat something that was previously properly and competently done. However, there are a lot of examples whereby investigations were not properly done, were not done to an independent standard and were not done to an ECHR-compatible standard. A lot of them precisely relate to state cases. At the initiation of the conflict, it was the case that killings by the British Army were not investigated by the RUC at all. Instead they were passed for a presentational process to the Royal Military Police. The courts have long held that they were not human rights-compliant investigations. The legacy commission would need to repeat investigations in those cases. Equally, the historical inquiries team is a much more recent beast in terms of how it dealt with state involvement cases. Again, it was held not to be ECHR-compliant. Therefore in the military cases in particular, there is a need for a further proper investigation. We are just concerned about clarity about the framing of that provision in the Bill. We would not want it to prevent what would be the first proper investigation of a case, on the basis that a previous investigation had taken place, which was only an investigation in name, not in practice.

Ms Gráinne Teggart

Mr. Holder has covered some of the points I wanted to make. I also highlight that we are awaiting a package of amendments from the UK Government that will also include, as it terms it, veterans' protections. We will want to see very clearly what is laid down there. The matter of immunity and impunity has been dealt with also in the Dillon case but the final shape of the legislation remains to be seen. That will be one of the areas we will want to look at and consider. In terms of the broader legacy framework outside of the Bill, I will go back to a point that Mr. Holder mentioned earlier. The UK Government has its neither confirm nor deny, NCND, policy, which is part of how these legacy cases are being dealt with at the moment. This policy provides for non-disclosure of the fact that state agents were involved at all in a case. I urge the committee to consider that there is still time for a rethink on some of the very fundamental concerns that we and others are raising here today, particularly in respect of the national security veto. It is regrettable to see that the Irish Government is mirroring those provisions, given that we have seen the national security veto act as a barrier to families in the North in getting long overdue answers on the deaths or killings of their loved ones.

An Cathaoirleach

I will put a broad question to the Department about the concerns that have been raised around the national security provision, how it might be applied and the issues around the language on timeframes. In one of her earlier answers, Ms Barry indicated that it would be the Minister's intention not to unduly intervene or to prevent information being shared. I do not think I am misquoting her. Of course, the difficulty with legislation once there is flexibility for a Minister is that we have no way of knowing who the future Minister will be. Successive Governments in this State have been rightfully very forceful in holding the British Government accountable for its refusal to engage in a proper legacy through the recovery process. If we take a step back, though, the history of this State in terms of its interaction with victims and people who have been wronged has actually been quite abysmal itself. I am thinking of the Garda heavy gang, for example. We know that through their actions, wrong people were imprisoned. Many families are looking for truth and justice yet there has been an absolute brick wall in terms of efforts to secure truth. Some people have received miscarriage of justice certificates in instances such as Terence Wheelock who was killed in a Garda cell with huge question marks but with no truth and justice. Last year the Government issued an apology to the family of Shane O'Farrell, yet we have State agencies refusing to provide that family with information in respect of his death. The Dublin airport bombing has been mentioned. Most people probably have never even heard that it happened because of the time it happened but somebody was actually killed in our main airport and their family cannot get the basic answers. Does the Department recognise the concerns that will arise when there are broad mechanisms that could be used to delay, frustrate or even block information being shared? How did that take shape in deciding to actually replicate the national security provisions that are in the British legislation? Is the Department open to addressing some of the concerns that are coming from victims in that regard?

Ms Anne Barry

The purpose of the scheme is to give effect to the joint framework. It is focused on providing for the fullest possible co-operation with the legacy commission when established in the UK, and with UK inquiries and also for the establishment of the independent commission on information retrieval, ICIR. It is designed to provide for the fullest possible co-operation to support the disclosure of Irish State materials, and to provide for the taking of oral testimony. As regards these structures within the State to investigate cases, including legacy cases, they are not part of this Bill. In that sense I am not in a position to comment on broader issues. It is the case that legacy cases have never been shut down here. All unresolved Troubles related cases remain open. An Garda Síochána is fully committed to investigating them. The Minister has certainly made clear in his public statements that we have an investigative system that is compliant with the ECHR. We have robust independent oversight mechanisms. There is nothing further I can say on that this afternoon.

An Cathaoirleach

I welcome Senator Stephenson, who is not a member of this committee but who has an active interest in this area.

Senator Patricia Stephenson

I thank the Chair for making time. A lot of the concerning points for victims and their families have been touched on. We talk about the importance of the process commanding trust and the importance of victims' families believing in the outcomes. The events of the past week underscore the importance of that and the fragility of it in many ways. Communities and families in the North have been systematically let down by successive British Governments, as the Chair mentioned, in terms of inquiries that have not met the most basic kind of transparency and accountability.

I remain quite concerned around this idea that people cannot be compelled to give testimony because they are no longer office-holders. I recognise that the Department has said that if they are not officeholders we cannot simply compel them but there is going to be a big gap there. As we have heard, time is running out and a lot of people will have retired who would have been involved. We will have a massive gap in the number of people's evidence and testimony as a consequence of that. This will fail a lot of the victims' families.

On the piece around the ECHR, we have seen concerns that the British Government is watering down its attitude. I do not know, and I have not heard, about the new administration's attitude to the ECHR, and how important it is that we are compliant with this for stability in the North and what it represents. With regard to balancing transparency and national security it would be helpful to reinforce the different options for having safeguards and greater accountability.

Mr. Alan Brecknell

I have to agree completely with the Senator. Trust is the most important thing here. Trust needs to be built. We cannot just assume that people are going to trust the Government. That is the one body within the country that most people, unfortunately, do not trust. A lot of work needs to be done in the South to gain the trust again of victims and survivors in the South. I do not know how one goes about doing that. It is about making this legislation as robust as it possibly can be. I understand that people cannot be compelled but there is a moral compunction on people to come forward if they have information. I do not know how this can be incorporated into legislation. I get that but there has to be some way we can say to people that for the greater good, and to ensure that this never happens again, we need to get people to come forward if they have information. I read the report of the Independent Commission for Reconciliation and Information Recovery, ICRIR, that was released last week. It made a decision not to interview individuals who were witnesses because of their age. Someone can be 90 and still have all their faculties about them. Someone can be 30 and not. One needs to go and see someone and stand in front of someone and make that decision as to whether he or she is capable of answering the questions one has for them or not. That was someone who was a witness. It was not someone who was an alleged perpetrator. We need to be looking at this. Yes we can put it down in legislation but in some way we need to be on the back of that also. How do we encourage people to come forward? How do we encourage people to see that this is the right thing to do at this stage in our peace process and in our small steps towards reconciliation? They are small steps at this stage. We have seen that over this past week, unfortunately.

Mr. Daniel Holder

I will pick up on the Senator's point on the ECHR. Clearly that is an absolute and of fundamental importance to all of this. We would have gotten nowhere in the North without the ECHR and without it being incorporated within the Good Friday Agreement in relation to legacy cases. I have mentioned a couple of times, without actually explaining them, the package of measures. A series of legacy mechanisms was in place in the North and delivering for families. They were very popular and families were queuing up for them right up until the point they were shut down on 1 May 2024 by Boris Johnson's legacy Act. The package of measures was a product of cases that were taken by ourselves, by Relatives for Justice and other human rights NGOs to Strasbourg, which compelled the UK to make changes in its justice system to set up those mechanisms. That relates to deaths and to the issues around torture. The first interstate case that Ireland took was around that so it was deeply dispiriting to see the whole process that lay behind the Chișinãu Declaration that was designed to weaken the ECHR. We need to keep a watching brief on the new UK Administration to see if it moves back to be on the right rather than the wrong side of that particular argument.

I will make a couple of points on ECHR compliance, one for each jurisdiction. The UK's current Northern Ireland Troubles Bill does not actually require investigations by the new legacy commission to be ECHR-compliant when they reach the evidential threshold, which is the Brecknell threshold, of evidence for a proper investigation. We think this is a flaw that the current UK Government does not move to remedy and that there should be an obligation for ECHR-compliant investigations.

In terms of this jurisdiction, as per the report by committee on the administration of justice, CAJ, and the Irish Council for Civil Liberties, ICCL, there are gaps in mechanisms that can ensure Article 2 and Article 3 ECHR-compliant investigations. Clearly, An Garda Síochána cannot investigate itself or other State wrongdoing, in the same way that we would not accept the PSNI investigating itself and the agencies that it worked alongside. Fiosrú has so far shown no appetite, despite the clear legal obligations on it to investigate legacy cases. This is, I think, one of the reasons that lay behind the CAJ-ICCL report's recommendations, and everyone else, that there needs to be a historical investigations unit. We also recommended in outstanding legacy cases particular inquiries that would have powers of compulsion. That would get around the issues of retired officers declining to co-operate.

An Cathaoirleach

I thank Mr. Holder and Senator Stephenson.

Ms Gráinne Teggart

I concur with everything Mr. Holder just said. I had a few of those points noted down. We particularly have to watch very closely, obviously, where the political support for the ECHR arguments go. The Chișinãu Declaration was very concerning. Does it represent a dangerous sort of roll back on the commitments to that? In the UK there is a particular cohort and organisations who are pushing, including on issues around legacy and veterans for example, as being a reason to withdraw from the ECHR. Given the centrality of it to our post conflict institutions and the role that it plays here in peace in Ireland, then it is all very concerning. They are also very proactively commenting that there are ways to do this, they claim, and where the Good Friday Agreement would remain intact. Of course they are wrong to do this as the ECHR is essential to it. Following from the Chișinãu Declaration, we have to watch very closely and make sure that the Irish Government, and all of us collectively, continue to advocate for its importance.

An Cathaoirleach

I thank Ms. Teggart. Does Ms Crowley wish to come in?

Ms Fiona Crowley

I just wanted to make a final point at the end.

An Cathaoirleach

Please do so now.

Ms Fiona Crowley

I mentioned at the outset that this particular Bill south of the Border is of significant importance to our global movement. Thirteen years ago this month Amnesty International, our global movement, published a report called Northern Ireland: Time to Deal with the Past, after two years of in-depth research with victims, survivors and stakeholders north and south of the Border. It was primarily directed at the UK Government and the Northern Ireland parties but there were significant recommendations made to the Irish Government. It is a real tragedy that we are sitting here 13 years later with a Bill that looks like this. I will quote from the press release at the time: "A failure to deliver a comprehensive approach to dealing with the past has contributed to the societal division that is still rife in Northern Ireland." How true. There is a cruel irony in the fact that Northern Ireland is held up as a success story when many victims' families actually consider their treatment a failure. The opportunity to get it right is right now.

An Cathaoirleach

I thank Ms Crowley. That is a good note on which to conclude. I propose that we publish the opening statements on the committee's website. Is that agreed? Agreed. I will reiterate the point that Deputy Ward made that, unfortunately, as we speak, there is a debate in the Dáil Chamber pertaining to the justice portfolio. This is why members have been coming in and out. The committee will probably be writing again to the Minister and the Chief Whip to request that this does not happen again. In conclusion, on behalf of all the committee members I thank all the witnesses for taking part in what was an extremely important engagement and a very frank engagement at that. We will suspend for five minutes before our next session

Cuireadh an suí ar fionraí ar 4.29 p.m. agus cuireadh tús leis arís ar 4.37 p.m..

Sitting suspended at 4.29 p.m. and resumed at 4.37 p.m.

An Cathaoirleach

The purpose of this part of the meeting is to resume our pre-legislative scrutiny of the general scheme of the legacy of the Troubles Bill 2026 with a number of stakeholders. On behalf of the committee, I welcome, from the Bar of Ireland: Ms. Kathleen Leader, SC, and Ms. Elizabeth Spelman, BL; and from the Data Protection Commission: Mr. David Murphy and Mr. Stephen Ryan. Also attending as observers are the officials from the Department of Justice, Home Affairs and Migration, Ms Anne Barry and Mr. Richard Gow, who are here to assist the committee with any clarification needed on the general scheme.

The format of the meeting is to allow each group to make an opening statement of about three minutes. We will then ask the members of the committee to put their questions in the order they have indicated.

Before I invite Ms Leader to make her opening statement, I want to explain some limitations to parliamentary privilege and the practice of the Houses with regard to references that may be made to other people in any evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected pursuant to both the Constitution and statute by absolute privilege. Members and witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity they will be directed to discontinue their remarks. It is imperative that they comply with such a direction.

I invite Ms Leader to deliver her opening statement on behalf of the Bar of Ireland.

Ms Kathleen Leader

I appear on behalf of the Council of The Bar of Ireland, which is the representative body of the Bar of Ireland. The council’s submission addresses the general scheme of the legacy of the Troubles Bill 2026, published on 9 June 2026. The council is broadly supportive of the general scheme and considers that many matters are comprehensively addressed. This submission identifies issues within Parts 2 and 3 of the general scheme that would benefit from consideration before the legislation is finalised.

Part 2 of the general scheme makes provision for agreements providing for co-operation between An Garda Síochána and the legacy commission, subject to prior Government consent.

Part 2 also establishes a process by which a judicial panel member conducting inquisitorial proceedings may seek sworn evidence, taken before a High Court judge, from present or former office holders of designated State bodies, which includes An Garda Síochána and, potentially, the Defence Forces. The council’s submission draws attention to the degree of executive control contemplated by Part 2 of the general scheme in deciding: whether requests for assistance will be accepted; which questions will be answered; and who will give evidence. The council recommends that this executive control be carefully considered and applied in light of the State’s commitments under the joint framework and the European Convention on Human Rights. The council seeks clarification concerning the nominated High Court judge’s role as contemplated by Part 2 of the general scheme insofar as he or she acts as a persona designata or as a court. The council also seeks clarification concerning the same judge’s powers and directions. The council notes that the general scheme does not include former holders of ministerial office, which appears to be at variance with the International Co-operation (Omagh Bombing Inquiry) Act 2026. Finally, the council recommends the inclusion of specific timeframes where the general scheme presently refers to action being taken “as soon as practicable”.

Part 3 of the general scheme addresses the establishment and functioning of the independent commission on information retrieval. The general scheme prohibits the ICIR from prejudicing national security, endangering any person or having a prejudicial effect on court or tribunal proceedings. The council recommends allowing for an extension of the 60-day ministerial review period concerning the draft report, clarifying who assesses the potential impact on court or tribunal proceedings and amending head 18 to ensure the relevant criminal offence applies to ICIR staff and other individuals. The council’s submission further recommends a clear process for the ICIR to seek information from An Garda Síochána, which would include a request procedure, response times and a duty to give reasons where disclosure is refused. The council’s submission notes that the proposed prohibition in legal proceedings on the use of information received by the ICIR and on any evidence obtained directly or indirectly as a result of that information is broadly framed and requires careful consideration to avoid unintended consequences. The council highlights the cumulative effect of the ICIR’s proposed immunities and exclusions from freedom of information and data protection legislation. In the circumstances, the council’s submission recommends provision for a robust data management policy.

Finally, the council notes that the UK Northern Ireland Troubles Bill is currently on Committee Stage before the UK House of Commons. Therefore, the council’s submission recommends that the same Bill’s progress should be monitored to ensure the implementation of harmonious legal regimes. The council remains at the committee’s disposal if it can assist further in the consideration of any of the issues raised in its submission.

Mr. David Murphy

I thank the committee for the invitation to contribute to its deliberations on the general scheme of the legacy of the Troubles Bill 2026. I am a deputy commissioner at the Data Protection Commission with responsibility for our supervision functions with regard to the public sector. Also in attendance is Mr. Stephen Ryan from the DPC’s supervision section, who is assistant commissioner with responsibility for matters pertaining to the processing of personal data for law enforcement purposes. This Bill gives effect to the legislative commitments of the Government under the joint framework to address the legacy of the Troubles agreed with the UK Government in September 2025. For the purposes of this meeting, the comments of the DPC will focus on those provisions of the Bill that relate to the processing of personal data by the public bodies named therein.

We note that heads 4 and 20 of the Bill relate to the provision of information by An Garda Síochána to, respectively, the legacy commission and the independent commission on information retrieval. These heads will provide a legal basis for the disclosure of information, including personal data, to these bodies subject to compliance with the Data Protection Act 1988. The DPC notes that the Act of 1988 will be applicable to such processing rather than the Data Protection Act 2018 and the GDPR. There are two reasons for this. First, the processing falls outside the scope of the law of the European Union and, therefore, the GDPR. Second, the Data Protection Act 1988 remains applicable to the processing of data for the purposes of the international relations of the State, which purposes are relevant to the present Bill and the proposed data sharing.

Head 24 of the Bill provides that the data protection regulation, GDPR, and the Data Protection Acts 1988 to 2018 shall not apply to the performance by the ICIR of its functions. This implements paragraph 3 of Article 8 of the intergovernmental agreement of 15 October 2015, which states, “Freedom of Information, Data Protection and National Archives legislation shall not apply to the Commission.” The DPC understands that the non-application of the data protection laws of both Ireland and the United Kingdom to the ICIR may be deemed necessary due to its status as a cross-Border body, established on the basis of an international agreement. However, we note that the non-application of data protection law to the processing of data by the ICIR will have the effect of not placing upon that body the responsibilities and obligations of a data controller and will negate the rights of individuals as data subjects provided under such laws. The DPC notes that the Bill does contain safeguards for personal data to be processed by the ICIR, including: the inviolability provided to the archives and premises of the ICIR under head 17; the prohibition on the disclosure of information under head 19; and the verifiable destruction of records and information held by the ICIR on the body’s dissolution under head 22. The DPC therefore recommends that, in the progression of the Bill and the establishment of the ICIR, due consideration be given to the implementation of safeguards equivalent to those provided for in data protection law to ensure, in particular, the confidentiality, security and integrity of information that it processes for the performance of its functions.

I hope these comments will be of assistance to the committee. I am very happy to answer any questions members may have and to speak to any of the issues that I have referred to.

An Cathaoirleach

I thank Mr. Murphy very much. I will allow seven minutes per member. I invite Senator Rabbitte to begin.

Senator Anne Rabbitte

I thank the witnesses for their opening statements. They are much appreciated. As the Chair said earlier on, there is a lot going on in the Seanad and there are questions going on in the Dáil. While I am here, everybody else would also like to be here to ask questions. Unfortunately, this is just the way things have landed.

I have a question for the Bar of Ireland. From a legal perspective, is the Bar satisfied that the Bill contains provision for sufficient independent oversight where information is withheld on the grounds of national security or should those decisions ultimately be made or reviewed by a judge? I think Ms Leader was in the audience earlier on so she would have heard the commentary.

Ms Kathleen Leader

The Bill as presently drafted does not contain any independent oversight mechanisms with regard to information that is not going to be forwarded to the legacy commission. It simply does not have any. It is important to emphasise that the exclusion of information does not only cover information relating to national security. It also extends to information that is inconsistent with the functions, whether statutory or otherwise, of the designated State body. From a totally legal point of view - I am speaking in that way - that is a very broad category of information. It is not defined at all. Including what is inconsistent with the functions, whether statutory or otherwise, of the designated State body allows for a lot of information not to go forward to the legacy commission. There is no oversight. I understand what the people from the Department of justice said about it having to go through the Minister's office and so forth but, with all due respect to the Minister and everybody else, who are doing their best, that simply is not independence.

Senator Anne Rabbitte

Ms Leader has touched on something that I am going to have to follow up on.

Are terms such as "national security", "sovereignty" and "other essential interests of the State" sufficiently precise or should the Bill define them more tightly?

Ms Kathleen Leader

I think so. It is possible to recognise what would prejudice sovereignty or security but not other essential interests because it does not define what an essential interest is. The functions of the State body comprise a totally separate category on top of the national security one, which was referred to extensively in the last session. Included in that is information likely to prejudice a criminal investigation or criminal proceedings. That adds another category to this as well. There is no oversight contained in the Bill as is, notwithstanding what it says about the Minister having to consider the matter.

Senator Anne Rabbitte

Is Ms Barry in a position to respond to some of that commentary in the two questions I asked?

Ms Anne Barry

This is not a novel provision as such. It is already on the Statute Book going back to 2019, when the Criminal Justice (International Co-operation) Act was enacted. The 2019 Act was enacted to allow for assistance to be provided to UK Troubles-related inquests and it has been used successfully on a couple of occasions. Information has been disclosed and the coroners concerned would have been satisfied with the process. I just want to make the point that this is not new. It has obviously then been replicated in the Omagh bombing inquiry Act. We have not received any requests under that Act yet from the chairman of the Omagh bombing inquiry.

The grounds as set relate to prejudice to criminal proceedings and prejudice to national security. Those grounds are well known in legislation and the senior leaders of public institutions who are charged with forming an opinion as to whether the disclosure in a particular case would give rise to those concerns are experienced in forming those views.

The Minister, and in some instances a second Minister, would have to be consulted. For example, if the Defence Forces are involved, their line Minister would have to be consulted as well as the Minister for justice, so there is an extra layer. That approach is considered to provide the necessary check on that process.

Senator Anne Rabbitte

That would apply if it was the Minister for justice and the Minister for Defence, but if it is just the Minister for justice and An Garda Síochána, there is not that second line of defence.

I will move on to the witnesses from the Data Protection Commission. If the GDPR and normal data protection obligations are disapplied, what protections should be expressly written into the Bill for data breaches, security, retention and the confidentiality of highly sensitive personal information?

Mr. David Murphy

I thank the Senator for the question. I echo what our colleagues called for in their opening submission, which was a robust data management plan. We have discussed the Bill with our counterparts in the UK, the Information Commission's Office, in relation to their views on the progression of the UK Bill. We have a similar understanding to them that while it may be appropriate for data protection law to be disapplied because we are talking about an international body established by treaty, with comparators being the OECD or NATO, such bodies do benefit from having robust data protection rules internally managed and perhaps upheld by an appointed person such as a data protection officer reporting to the head of the organisation. They should cover, as the Senator mentioned in particular, the key data protection concepts of security, confidentiality and integrity of data, especially given the very sensitive nature of the information that the commission will be acquiring.

The Senator raised a good point about data protection law not applying. If a data breach were to occur, for example, and as with any other data controller, steps would have to be taken in the first instance to notify the supervisory authority. We know that there will be no oversight or supervisory authority in this case, but the secondary responsibility is to notify the affected data subjects. Where persons may be personally affected or put at risk by their personal data being leaked as a result of a data breach, GDPR places obligations on the controller to notify the persons so they may take appropriate steps to protect their own interests.

As the Bill progresses and certainly in the implementation of the ICIR, it will be necessary or, from our point of view, highly desirable for these questions to be posed. If the ICIR remains outside the scope of data protection law, we in the Data Protection Commission will have no formal oversight position, but we will be happy to informally engage to see what those policies, procedures and data management practices might look like in practice going forward.

An Cathaoirleach

I have a couple of questions. I will start with Mr. Murphy and Mr. Ryan about data protection and the proposed complete exemption that has been referred to from data protection legislation. They have suggested that maybe a more limited and targeted approach would be preferable. What amendments would the witnesses see as being appropriate to have a better balance of the functions of the Independent Commission for Reconciliation and Information Recovery with the data protection rights that they have spoken about?

Mr. David Murphy

We spoke to our colleagues in the Information Commission's Office. They are currently engaged with the UK Northern Ireland Office in relation to the UK Bill. They are looking at exactly what we are talking about, that is, a requirement for protocols to be put in place for the handling of the information by the ICIR, including specific requirements for policies around how data will be handled. Since the GDPR came in, many Departments have become used to drafting such provisions to require newly established bodies to put in place technical and organisational measures to ensure data protection and compliance. What we will be asking for is consideration of equivalent requirements of the principles of data protection, which have been around since 1981 and arise from the Council of Europe Convention 108 in 1981, not the GDPR, and are long-standing principles. We will be asking for consideration in the ongoing drafting of the Bill of clear requirements for the ICIR to put in place protocols, policies and procedures to ensure that data is handled securely and in a confidential manner and that its integrity is protected, in particular as regards data breaches, as I mentioned in relation to the previous question. We understand that the intention of the ICIR is to deal with highly sensitive information in a highly confidential system. We do not have a concern that it will not be maintained in such a manner, but to place a requirement on the body to do so would raise it to the level that it would be at were it subject to GDPR and to data protection law more broadly. I hope that answers the question.

An Cathaoirleach

I thank Mr. Murphy. I will go back to Ms Leader and Ms Spelman in respect of the Bar. They have suggested that the executive control of information provided for in heads 6 and 7 could affect the State's ability to meet its obligations under the European Convention on Human Rights. What amendments do they believe would be required to address those concerns and ensure compliance with those obligations?

Ms Elizabeth Spelman

There are two points on that. The first is in relation to the joint agreement, which was that the State meet its obligations under the joint agreement and, under the ECHR, its obligations pursuant to Article 2 in terms of providing assistance once a legal request for assistance is received. The State would be required to make sure that its co-operation, as framed under the current Bill, meets those standards to make sure that it is in line with its international obligations.

That was addressed in a particular case of Rantsev v. Cyprus and Russia. The European Court of Human Rights held that there was a duty on a state where evidence was located to render any assistance within its competence and means sought under a legal assistance request. That is quite broad, so the State would have to be mindful of its obligations in this regard.

An Cathaoirleach

I thank Ms Spelman for that.

As regards the questions raised surrounding the powers and role of the nominated High Court judge, which I think is in Part 2 of the general scheme, does the Bar of Ireland have any particular clarifications it is looking for before the legislation is finalised?

Ms Kathleen Leader

The legislation is silent as to what will happen if the judge's directions are not obeyed, whether that constitutes a contempt of court and so forth. In the explanatory memorandum, it says that the judge is acting as a persona designata, so there is no penalty or power given to the High Court judge to ensure that any directions he or she issues are followed by the person to whom those directions are addressed.

Regarding explanatory questions, I do not want to be critical because everybody is doing their best, but what an explanatory question is is very unclear under the heads. It is possibly for the person drafting the questions to ensure that they are clear and the information requested is available to the witness before the tribunal and so forth. To expand on that, the High Court judge is left in somewhat of a vacuum as to the extent of the questions he or she can ask.

An Cathaoirleach

That leads nicely into my final question, which is on the need for a structured process, which the witnesses have argued for, in the information sharing between An Garda Síochána and the independent commission. To have confidence in this area, it is important that people see full transparency and accountability, but also speedy responses and delivery. Are there any specific changes that the Bar would recommend for the final legislation?

Ms Kathleen Leader

I will point in one direction, if I may put it that way. I have read out a summary of our submission, but basically, changes would include where and what person or unit of the Garda exactly people should be pointed to. It is also important that time periods be inserted in the Bill because it is broadly drafted. This reflects what was said in the earlier session about people not being replied to and so forth. A person or department nominated within An Garda Síochána, as well as a prompt period for responding to and dealing with any queries, should be set out.

An Cathaoirleach

I thank Ms Leader for that. Nobody else is indicating, so if I may, I will ask some questions of the officials from the Department. There are expansions on the legislation, so if they are not in a position to respond, that is perfectly okay.

Funding for the legacy mechanisms has been raised as a concern. We are going to the effort in this State of adopting this legislation. Have there been any interactions between the Department and British officials in respect of resourcing the mechanisms that will be in place?

Ms Anne Barry

The Department of foreign affairs generally leads on legacy. The joint framework provides for a certain level of funding from the Irish Government to assist families, at least with representation before the legacy bodies in the UK. I think it is €25 million over three years. That would be a matter for the Department of foreign affairs to deal with.

An Cathaoirleach

Is Ms Barry in a position to provide an update on the interstate case and whether it is the Department's intention to continue pursuing that matter at this stage? Is that also for the Department of foreign affairs or would the Department of justice have a role?

Ms Anne Barry

It is more for the Minister for foreign affairs, but the focus of the Government is on full and speedy implementation of the joint framework, which is an important consideration.

An Cathaoirleach

Is it fair to say that the interstate case is still live?

Ms Anne Barry

Yes.

An Cathaoirleach

Obviously, one of the concerns about this entire process is the potential inclusion of special safeguards or procedural protections for British state actors. In preparing for this Bill, has that matter been engaged on in bilateral discussions with the British Government in terms of those concerns?

Ms Anne Barry

That is not something I can comment on. It is not pertinent to the scheme being scrutinised.

An Cathaoirleach

Ms Barry might not be in a position to answer this either, but in terms of engagements on this Bill, do those in any way impact on the Government's stated position with respect to independent inquiries and, for example, the Sean Brown case, which was mentioned earlier?

Ms Anne Barry

That is a matter for the Department of foreign affairs.

An Cathaoirleach

That is okay. There are no other members indicating, so I propose that we publish the opening statements on the committees website. Is that agreed? Agreed.

I sincerely thank our guests for being here from the Bar and the Data Protection Commission. I also thank the officials from the Department of justice. I apologise that their attendance happened to coincide with a Dáil debate. It is very frustrating to watch members of the committee, many of whom would have liked to have been here, standing up in the Dáil for a debate that some of us who have been here would have been keen to participate in. My apologies to everyone in that regard.

Is it agreed that we suspend for five minutes before we deal with some housekeeping issues? Agreed.

Cuireadh an suí ar fionraí ar 5.07 p.m. agus cuireadh tús leis arís i seisiún príobháideach ar 5.09 p.m.

Sitting suspended at 5.07 p.m. and resumed in private session at 5.09 p.m.

Cuireadh an comhchoiste ar athló ar 5.19 p.m. go dtí 3 p.m., De Máirt, an 13 Deireadh Fómhair 2026.

The joint committee adjourned at 5.19 p.m. until 3 p.m. on Tuesday, 13 October 2026.

Joint Committee on Justice, Home Affairs and Migration debate - Tuesday, 29 Sep 2026

General Scheme of the Legacy of the Troubles Bill 2026: Discussion

Ms Fiona Crowley

Ms Gráinne Teggart

Mr. Alan Brecknell

Mr. Joe O'Brien

Mr. Daniel Holder

Mr. Alan Brecknell

Mr. Alan Brecknell

Mr. Daniel Holder

Mr. Alan Brecknell

Ms Gráinne Teggart

Mr. Alan Brecknell

Ms Emily Williams

Ms Anne Barry

Mr. Joe O'Brien

Mr. Alan Brecknell

Mr. Joe O'Brien

Ms Emily Williams

Mr. Daniel Holder

Ms Emily Williams

Ms Anne Barry

Ms Emily Williams

Mr. Daniel Holder

Mr. Daniel Holder

Mr. Joe O'Brien

Mr. Daniel Holder

Mr. Daniel Holder

Mr. Daniel Holder

Mr. Alan Brecknell

Ms Anne Barry

Ms Anne Barry

Ms Anne Barry

Ms Anne Barry

Mr. Daniel Holder

Ms Gráinne Teggart

Ms Anne Barry

Mr. Alan Brecknell

Mr. Daniel Holder

Ms Gráinne Teggart

Ms Fiona Crowley

Ms Fiona Crowley

Ms Kathleen Leader

Mr. David Murphy

Ms Kathleen Leader

Ms Kathleen Leader

Ms Anne Barry

Mr. David Murphy

Mr. David Murphy

Ms Elizabeth Spelman

Ms Kathleen Leader

Ms Kathleen Leader

Ms Anne Barry

Ms Anne Barry

Ms Anne Barry

Ms Anne Barry

Ms Anne Barry

Joint Committee on Justice, Home Affairs and Migration debate -
Tuesday, 29 Sep 2026