On the legacy deadlock, equality before the law for the security forces is not moral equivalence with the IRA

Ruth Dudley Edwards has just commended “Legacy: What To Do About The Past in Northern Ireland”, a short book by Unionist councillor and redoubtable human right campaigner Jeff  Dudgeon,  edited mainly from the contributions at the conference on legacy legislation he organised in Belfast on March 3rd.

As you’d expect, Ruth shares the passionately held view that the UK’s so far unseen draft Legacy Bill is based on a flawed approach developed by the traditional justice academic lawyers who to a large degree are believed to have shaped it. The Bill is based on the Haass-O’Sullivan report and the relevant section of the Stormont House Agreement both of which were rejected. .

The academic lawyers have form. They were largely responsible for the controversial disbandment of the previous Historic Enquiries Team (HET) on the grounds of conflict of interest and of failing to digging down deeply enough for evidence against the security forces in particular, an opinion hotly contested at the time by former Chief Constable Hugh Orde, with all his experience the Stevens inquiries.

Ruth approving quotes Professor Arthur Aughey writing that “we are at a stage of moral inversion: where terrorists have become victims; where those who enforced the law are now held to be in debt to those who did not, and where dealing with the past has come to mean underwriting a narrative of subversion”.

She goes on:

I’m not alone in having been bewildered and uneasy about the one-sided debate on addressing the past and the seeming spinelessness of the British Government and many unionists in the face of the ruthless republican war of attrition that looked like producing a compromise which would have been, as councillor Dudgeon says, “over-complex, unworkable and unjust”.

In his own paper Jeff also inveighs against the lawyers.

There can be little real freedom if one view monopolises our two universities’ law schools, under the title transitional justice. What’s wrong with justice? The Academy is clearly unbalanced..

And he urges that

the unseen but enormous Legacy Bill must not be implemented without the chance of considerable amendment, or even proposed institutions being scrapped, during a genuine consultation. Without our voices being heard, that is unlikely.

We are not a petty people, this mixture of liberals, civil libertarians unionists and non-unionists who value freedom and human rights – the right to life in particular..

Of course he’s right: the Legacy Bill should be published and there should be  the proper consultation that has been shamefully suppressed for  at least four years.

But he and Ruth are mistaken in crucial respects.

Where is the evidence of this great propaganda victory republicans are supposed to have won? Who seriously believes that their narrative prevails other than among their own sympathisers and supporters, who will continue to believe what they want to believe? Jeff and co seem to be adopting the old bugbear of a zero sum argument, that findings of  criminal behaviour by the security forces consequentially endorse the  republican narrative.

It is a basic fallacy to believe that equality under the law for paramilitaries and the state alike is synonymous with moral equivalence in the Troubles.

By all means let’s debate, but on what basis and for what purpose?

It should be about asserting the rule of law rather than fruitless wrangling in a propaganda war.  The justice system has hardly dealt harshly against the security forces, though it is true that if the Human Rights Act had been in force during the Troubles, they would probably have been more rigorously tested.

If we are looking for more “ inversion,” to match Arthur Aughey’s, consider the  extraordinary situation where Sinn Fein support the funding of inquests and the DUP the party of British law and order, oppose it on the grounds that historical inquest verdicts would tend to support a republican narrative. This is not constitutional behaviour.

If we are looking for narrative advantage, unionists should be reminded that the achievements of the security forces are going by default. They should welcome their greater exposure. The extreme claims of collusion cannot be answered without evidence.

The work of the independent Historical Investigations Unit would also increase the chances of prosecuting former IRA members and other paramilitaries.

The idea of an amnesty for former security forces in Northern Ireland stems from cases relating to the very different conditions of Afghanistan and Iraq. It should be dropped on the grounds that it would fatally undermine confidence in the justice system. In our situation the DPP can be relied on not to bring vexatious prosecutions against former soldiers and police officers.

There is an unspoken assumption that somehow, the IRA and  loyalists  got away with it. They did not. Thousands served long prison sentences before the prisoner release scheme  It would  valuable to present an analysis of sentences served.

The habit of opposition is so engrained in Northern Ireland  that criticism is often deemed sufficient without offering solutions. That should  change.

The British government should take the initiative by opening the archives to scholars consistent with “national security,” and the Convention on Human Rights,  thus challenging Sinn Fein’s bar on progress.   This is recommended by the barrister Austen Morgan one of Jeff Dudgeon’s contributors and he goes on to support eventual amnesty.

The Lord Chief Justice requires funding for historic inquests for five years. He is hardly a Provo lover. Refusal is probably illegal and could smack of cover up.

To search for fresh evidence the independent Historic Investigations Unit (HIU) replacing the Historical Enquiries Team (HET) and the legacy woEQrk of the Police Ombudsman should be set up. Its work should continue for the five years for which extra funding has been made available by Westminster.

Would the local parties agree to do all  this? Probably not. If not the British government should assert its sovereign authority and do it themselves. After all they carried the responsibility for most of the Troubles.  Dealing with the past is too much for even a functioning coalition of opposites to cope with unaided.

This surely is what the debate should be about. What is there to fear?

 

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Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London