After the Stormont House Agreement, will the latest initiative to bring state actors to account become the one that succeeds?

The UK government stands accused of continuing  to cover up state misbehaviour in a humdinger of a Report just published by the legal experts of the  Committee on the Administration  of Justice. The report is the supporting analysis for  renewed pressure on the authorities who have pledged to set up “ new mechanisms” in the form of an Historic Investigations Unit  under the Stormont House Agreement. The CAJ report adopts a sharper tone and levels more direct criticism at the government than previous reports.  It takes no account of the claims by among others the NI Attorney General that the trail of evidence in most cases is insufficient to secure convictions. The central charge of the CAJ report  is that the British government of today has set up an “apparatus of impunity” ( slightly softened by a question mark)  to allow police officers, soldiers and MI5 officers to  get away with abuses during  the Troubles. The charge is not new and  the report may not give enough credit to the course of recent judicial rulings, the de Silva report into the murder of  Pat Finucane and the HET  which was tasked mainly  with achieving closure for relatives.  Nevertheless  the analysis is compelling  and deserves  honest  and open debate.

However this seems unlikely and there’s  little around that  can make it happen. While it may be conceded that standards of investigation and justice were lower during the Troubles than under today’s human rights standards, government will continue to resist a wholesale review of cases and will continue to give the benefit of the doubt to  the former security forces who were upholding law and order  in contrast to paramilitaries who by definition, were not.

Foreseeably there will be “no overarching legacy commission or transitional justice mechanism to deal with the legacy of the Northern Ireland conflict” The British government will not open secret files for a long time if ever. They believe a great deal has been revealed about collusion even by broad definition. The pace of inquests may pick up under pressure from the higher courts after Chief Justice Morgan expressed the view that inquests into deaths involving alleged state collusion could go on until 2040. The courts have ordered further disclosure of for example the Stalker-Samson report into “shoot to kill.”  Convictions now judged unreliable have been quashed.  But there’s general opposition to an amnesty  that might aid disclosure and no sign of an end to paramilitary omerta. This matters in a  highly politicised climate where political balance takes precedence over insistence on pure justice and political demand for it will be muted, like it or not. Sinn Fein like loyalist groups have much to hide  and their credentials for championing justice are to say the least, tarnished. Legal action outside the UK courts as under Article 2 of the European Convention on Human Rights will not amount to decisive pressure, even though Article 2 standards are now said to be the norm.

Perhaps the CAJ spotted an opening  from the Irish government’s rather surprising  move over the “Hooded Men”  case over internment in 1971 before the Strasbourg court?  The legal immunity offered to  the reports of an Independent Information Retrieval Commission operating behind Chinese walls in  parallel to the legally empowered  Historic Investigations Unit may not be robust enough – although the CAJ might have offered  more of a view on it. It’s as much as we’re likely to get.

So why bother?  Because Stormont House offers another chance to return to the fray. There is one basic question for the legal officers. How do you know there’s not enough evidence about past misdoings if you don’t even try to find it?

But for all its incisive and forensic analysis, will the CAJ  report change minds  or disturb the status quo of deadlock?

CAJ Report  highlights

  The evidence does not support a conclusion that a ‘package of measures’ is being deployed in good faith by the UK Government, only held back by the complexity of the issues, cost and lack of consensus among Northern Ireland politicians. Rather, it points to a common purpose between the UK Government and elements within the security establishment to prevent access to the truth and maintain a cover of impunity for state agents.

 

Perhaps the most powerful and all-pervading element of the apparatus of impunity is the‘national security’ doctrine. The UK Government has adopted a Through the Looking Glass philosophy when it comes to national security since there is no definition and the term is deliberately kept flexible. Yet any matter which touches upon this concept is reserved to central government and in its name it can deploy huge powers of direction and concealment.

The Secretary of State for Northern Ireland can veto any action of a local minister or any piece of legislation if she considers it incompatible with national security and can direct a minister or department to take any action to ‘safeguard the interests’ of national security. The Security Service, protected from any serious scrutiny, has been given strategic primacy in ‘national security’ policing. The Secretary of State also has powers to curtail or direct investigations and censor investigatory reports which touch on national security.

The UK Government has also sought to designate the whole of the past in Northern Ireland a ‘national security’ matter since the Northern Ireland Office seeks to retain control of all pre-devolution records and it decides what is to be made available to devolved bodies.

Furthermore, a wide range of agencies drop their usual line of accountability and instead report to the NIO when carrying out tasks which are deemed to impinge upon the undefined concept of national security.