The remarks by Teresa Villiers on dealing with the past will surprise no one. They serve as a reminder of who is ultimately in charge, despite bashfully standing on the sidelines. The era of public inquiries is over. For good or ill there will be no public inquiry into Finucane, the “Ballymurphy massacre” or any other terrible incident with major question marks hanging over it. Since Savile, the limitations of inquiries have been demonstrated at a cost of another hundred million pounds. That is good enough for the British government who still have oversight of the Troubles legacy under the rubric of “national security.” There will be no State recognition of a “conflict” between equal protagonists with fresh implications for compensation, (although this is not to concede some sort of privileged treatment for the security forces in the historic cases review, a process that seems to have been badly compromised.). A Legacy Commission as recommend by the discarded Eames- Bradley report looks out of favour not only on grounds of expense but because it could degenerate into a forum for whataboutery, rather than for confessions. No real incentive currently exists nor can one imagine a united approach to confessions emerging from the Haass talks.
Gerry Adams’ objections to Villiers’ “setting parameters “have a ritual ring to them. The former IRA and State agencies are in unholy alliance of mutual embarrassment against anything like full disclosure. This does not quite get them off the hook. Neither the local parties nor even the British government control of the process. Both are subject to law, which is a matter for an operationally independent police force which in turn is subject to scrutiny; and those who administer justice, the independent prosecutors, the coroners and the judges. All have showed signs of robust independence from time to time, most recently in HM Inspectorate of Constabulary’s scathing findings of unequal handling of military and paramilitary cases by the historic enquiries team in July and the earlier example of the police enquiry into Bloody Sunday, an episode however definitive, might already have been thought to have run its course. Villiers seems to have ruled out the only instrument that would cut through all those spheres of discretion, a statute of limitations.
Nevertheless all political parties are tacitly united in their common lack of enthusiasm for vigorous further action. It would be a relief if they could find a form of words in the Haass talks to admit it. One method is to hand. The British are waiting for the parties to give their united support to an agreement on the release of documents suitably redacted to conceal identities. That could well become the parties’ main contribution to dealing with the past.
Much depends on what documents would be made available. Protocols and a timetable for their release should be made available for discussion at the Haass talks.To what extent would release be governed by the completion of the historic enquiries process, which now look subject to considerable delay? Could they be challenged in court? (Almost certainly yes). Would they include RUC, Army and MI5 documents currently exempt from the new 20 year rule? Who would be responsible for the release? To whom would they be released? Restricted or open? In the right forensically skilled and investigative hands, the result could be a series of de Silva reports. Will the nationalist parties settle for that? The present history of MI5 by its official historian Christopher Andrew extends to the post 9/11 period but the history of MI6 by Queens’ own Keith Jeffrey finishes in 1949. Releasing NI material which is still highly sensitive would be a new departure.
Before reaching the crunch point it would be beneficial if the parties should commission an analysis of how dealing with the past is being managed, to include :
An audit of all scheduled prosecutions, convictions and sentences by offence, term and affiliation.
How much of the HET process has been discredited?
Partly related to that and making the assumption that the extreme allegations of collusion and other illegal acts are exaggerated, what is the explanation for the huge disparity between paramilitary and security forces prosecutions and convictions?
What is the estimate of the number of forthcoming cases for criminal cases review by judges for “ unsafe” verdicts?
What is the current role and expectations of inquests?
The assumption is widespread that there is only a small number of cases left to consider.. Who will take responsibility for telling us?
Down the decades both sides have responded to pressure, the State with the spate of inquiries ending in de Silva, republicans by some strategic expressions of regret notably over the “disappeared . “ But beyond that the parties have traded slogans of “one sided justice “ and “continuing the war by other means “versus “ no hierarchy of victims” ( including former convicted terrorists). Each cancels the other out. The British government has largely stayed aloof . All that needs to change.
Where’s the justice in it all I hear you cry, in the era of DNA forensic evidence, the second Hillsborough enquiry and criminal cases reviews going back twenty, even fifty years, even down to hunting 90 year old Nazis?
The blunt fact is that apart from the occasional case pursued for what seems like the sake of appearances, individual justice was superseded by politics years ago. Politicians would do us all an immense favour if they owned up to that fact and accepted the burden it imposes on them to live up to it. Will they?