New Northern Ireland legacy legislation on the way at last, but with fundamental changes

Big other news announcement on the Legacy Bill which  on the face of it cuts back significantly on the prospects for new investigations and prosecutions for former security forces and paramilitaries alike. An NIO statement combines the legal investigative functions of the proposed Historical Investigations Unit with the Independent Commission on Information Retrieval.

It is proposed that these measures should be carried out by one independent body to ensure the most efficient and joined-up approach, putting the needs of the individuals most affected at the heart of the process. This body will oversee and manage both the information recovery and investigative aspects of the legacy system, and provide every family with a report with information concerning the death of their loved one.

Only cases in which there is a realistic prospect of a prosecution as a result of new compelling evidence would proceed to a full police investigation and if necessary, prosecution. Cases which do not reach this threshold, or subsequently are not referred for prosecution, would be closed and no further investigations or prosecutions would be possible – though family reports would still be provided to the victims’ loved ones. Such an approach would give all participants the confidence and certainty to fully engage with the information recovery process.

The Government believes that this approach would deliver a fair, balanced, and proportionate system that is consistent with the principles of the Stormont House Agreement and deliver for all those who have been affected by the events of the past; striking a balance in enabling criminal investigations to proceed where necessary, while facilitating a swift transition to an effective information recovery mechanism before this information is lost forever.

The draft Bill and earlier versions like Haass -O’Sullivan report made much of the Chinese walls between the two bodies. This suggests the HIU will not proceed as planned. Brian Rowan offers his analysis here.

It means there won’t be full-blown investigations into the 3000-plus conflict killings, but rather desk-top reviews that will triage cases in terms of investigative possibilities.

A high bar on future prosecutions now seems likely.

Last week in a lecture to the Policy Exchange think tank the NI  Attorney General  John Larkin suggested a certification scheme to apply for future former security forces  prosecutions. ( A text is still pending. The lecture itself is very technical and recommends a more restrictive approach to the European Convention on Human Rights and in particular to Article 2, the right to life. Most of his more accessible remarks came in Q&A).

Larkin said without fresh legislation, cases would “trundle on and on because we have no statute of limitations. If  Boris  Johnson  wanted to change the law, “then he should do so; if not then we will remain as we are.”

He drew a distinction  between ” a split second decision to open fire and  a plan to plant bombs. His preferred solution would be a “certification” system in which legacy allegations against former forces personnel would be assessed by a senior judge. “If you had a case involving a soldier who was 19 at the time and took a decision in the heat of the moment, “the judge could take a view on whether it was in the public interest to prosecute. Cases that were granted a certificate would proceed, those that were not would be dismissed.”

Larkin  told me he believed the parties were reaching broad agreement over  how to proceed  but as Rowan points out, the devil will be in the detail.