The consultation on the Legacy Bill has predictably divided along sectarian lines and is doomed to fail. Radical thinking is needed, and is available

Arthur Aughey, a doyen of thoughtful unionism, has made an important contribution to the Newsletter’s series on “the legacy scandal” ( no mistaking  their point of view).

The draft Bill involves a civil service logic: it is time to get this done; the template has been agreed; so let’s get it done.

From that bureaucratic angle, it all makes perfect sense.

The Legacy Policy Team has done its job

There is another logic in play, that of policing and justice.

Resources need to shift to problems of the present.

Outstanding issues from the past should be removed and dealt with in the manner set out in the draft Bill.

For the Department of Justice, concerned with managing its budget, that makes perfect sense too.

One can appreciate those complementary logics.

However, it is clear that they have encountered a reasoned scepticism and, as the contributions to this series in the News Letter confirm, there is widespread criticism or rejection of what is proposed according to proportionality, legitimacy and justice.

There are:

  • clear anxieties about how the institutions would function;
  • concern about the complexity of the process;
  • serious reservations about the scope of the Historical Investigations Unit (HIU);
  • failure to be convinced that there would be delivery on the objectives of the Bill;
  • and suspicion that the outcome will not be balanced, never mind truthful.

The Bill may be an ingenious blueprint drawn up by very clever drafters. Yet the structure arising from it appears a gothic folly of labyrinthine legalism but built on the narrowest of ethical foundations.

There has been much criticism, for example, of the exclusive focus on killings which ignores those injured by bombings, shootings and the so-called collateral damage of republican and loyalist terror campaigns.

This is only a manifestation of a deeper conceptual problem.

The consultation paper accompanying the draft Bill is titled: ‘Addressing the Legacy of Northern Ireland’s Past’.

There is a confusion, or running together, of the limited, legalistic understanding of ‘legacy’ we find in the Bill and the larger matter of ‘addressing’ or ‘dealing with’ Northern Ireland’s past

My point is a simple one: that the running together of ‘legacy’ (so defined) and ‘addressing the past’ (confined by this prior definition of legacy) leads to a distortion of the past.

With due respect to our new growth industry, I fear what will emerge at the end of the process is an official sanctioning of the Black Taxi Tour version of Northern Ireland’s past.

What do I mean?

In the draft Bill, the past is effectively confined to the encounter between ‘anti-state’, ‘pro-state’ and ‘state’ forces.

And that confinement, of course, is a reading of history which fits very well the self-serving and self-exculpating narratives of those groups — loyalist and republican — which rejected the democratic process in order to undermine the rule of law.

It is a ‘war’ narrative.

Written out of the past are those in politics, public service, churches and civil society who helped keep people out of that war narrative.

Surely the ‘independent academic report on themes’ will address that limitation?

Surely that report will provide the larger historical perspective to balance the limited legacy narrative?

Unfortunately, it won’t.

It will reflect exclusively on the ‘evidence base’ of the other institutions, pre-determining its scope.

Dealing with the past in such a way can only leave its own legacy of partial untruths.

It is quite remarkable that proposals to deal with the past have no role for a historical commission.

Such a commission could provide an alternative approach, helping people to make sense of the past, one which puts campaigns of violence in context.

The Oral History Archive, while a potential valuable resource, will lack intellectual substance if not complemented by a close study of archival sources.

This is the proper way to deal with ‘facts’, to understand themes and patterns and to yield an explanation of events

This historical approach has been dismissed as fantasy (as if never implemented elsewhere); labelled academic in the sense of being irrelevant (as if the current approach is not academically based); and dismissed because historians disagree (as if legal interpretation is self-evident).

The consultation paper asks whether there is a different way to address Northern Ireland’s past.

The answer lies in what is missing in plain sight in the Bill.

Bring history in.

A few years ago  Arthur was involved in Arkiv, a group of historians  and others with a website arguing for the facilities to create a comprehensive Troubles narrative.  It should be revived.

There is no doubt that if the Newsletter series encapsulates majority unionist opinion, the UK government’s consultation on the draft legacy Bill  will suffer the familiar fate of failure.  The best that can be argued at the moment is that conclusions are premature. Let’s wait and see the results of the consultation and the government’s response. I wouldn’t be optimistic though.

The Government lacks the policy heft and political feel  to make difficult choices. The mindset persists that they are referees more than players despite being in direct charge of Troubles policy for 26 years. Then there is the obvious inability of the local parties  to agree on  their own.  Their government’s  pledges of “ full cooperation”  to deal with the past therefore seem cynical or at best, going through the motions.  They are further undermined by  blatantly partisan and absurd Conservative ideas like a selective amnesty for the security forces and the absence of  any  explanation of how “ national security” can be reconciled with even selective  public access to government records.

There has always been a tension between the approach of the transitional justice  lawyers  who I understand  greatly influenced the draft Bill on the Past and those – mainly pro-unionist it turns out – who are more interested in a comprehensive narrative.

In theory justice and “ truth” – the wider truth   beyond  the legal context –  should  be synchronous. In practice, they are dividing along sectarian lines .And this is tragic.

This is not the place to argue the issues in detail. But two points can briefly  be made. It is bizarre of critics to assume in advance that legal process – the assessment of evidence for prosecution and the holding of inquests under High Court supervision – would deliver “ one sided justice”,  disfavouring the security forces in particular .Where is the evidence that the rule of law Arthur and other critics  naturally regard as fundamental would become selectively biased?

Secondly the writing of Irish history – even the history of the Troubles – is recognised to be of the highest order.  While there are different interpretations, they are obviously intellectually respectable.

One gigantic step is almost certainly needed to cut this Gordian knot.  The early end to prosecutions would make access to files easier.  As things stand, all political parties are opposed. Many of those who have first hand knowledge and direct experience are in favour.  Sooner or later the politicians will have to face the question. Without it there is little prospect of  dealing with the past at any significant level.

I would say to government : provide much needed clarification of the role of the Historical Investigations Unit and give the system the five years for which there is funding to try to turn up fresh evidence  in cases where further inquiry seems profitable. And in the meantime , make continuous assessments of the value of the whole enterprise.

This should not be impossible. All sides claim they are more interested in truth than convictions. Let them prove it.



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