Major battle likely over the UK government’s latest Legacy plans.

For those of us who don’t provide an essential service there will be time and energy  to spare for the matters I’ve  already  drawn attention to, such as  the government’s  latest Legacy proposals  produced last week. They abruptly overturned  everything that has gone before, reached after  years of tortuous  gestation and months of consultation,  concluding in July last year. They were contained in a brief statement above the name of the new Secretary of State Brandon Lewis:

Reconciliation and information recovery for victims who suffered during the Troubles form a key part of the proposals. A new independent body will conduct swift, final examinations of all the unresolved deaths. Only those cases where there is new compelling evidence and a realistic prospect of a prosecution will be investigated. Once cases have been considered there will be a legal bar on any future investigation occurring. This will end the cycle of reinvestigations for the families of victims and veterans alike.

A central resource for people from all backgrounds – and from throughout the UK and Ireland – will also be created to share experiences and narratives related to the Troubles.

The statement is framed  in the style of Communist  East Germany  government communications favoured during the  pre- Julian Smith era, consisting  of  patronising  optimism  laced with as little information as possible, followed by silence. It doesn’t even repeat  former NI Secretary Julian Smith’s undertaking to legislate within 100 days of the New Decade, New Approach agreement restoring the Assembly. We are already half way to that notional deadline.

We can  infer that the proposal to set up an independent Historical  Investigations Unit and a separate  Commission on Information  Retrieval with Chinese walls between them has been abandoned in favour of a   review of the available evidence followed by  closing  the books unless the evidence is strong.

The Sun, trumpeting an Exclusive even in the throes of the coronavirus crisis last week had no doubt this is what is meant.

HUNDREDS of ageing Northern Ireland veterans are to be given legal promises that they will never be pursued through the courts again.

The landmark offer is being drawn up by ministers as the next chapter in their election vow to end “witch-hunt” historical investigations, The Sun can reveal.

Opinion in Northern Ireland is reported by Brian Rowan in  eammonmallie.com  It divides on predictable lines  in a piece he calls “ Glidepath to Amnesty.”

The Guardian reported  Ministry of Defence measures,  which exclude Northern Ireland service and may bring to an end a dispute  between the MoD and the NIO

The new regulations, revealed on Wednesday ( 18th March), introduce a “presumption” that once five years have elapsed from the date of an incident, it would be “exceptional” for prosecutors to decide that a serving or ex-soldier should be prosecuted for alleged offences on operations outside the UK. Any prosecution would require the consent of the attorney general before it could proceed.

The latest Ministry of Defence initiative follows intense political debates over long-running investigations into former soldiers. By dealing with those who have served outside the UK, and therefore excluding British soldiers who served in Northern Ireland from the proposed legislation, the five-year limit could be help defuse the MoD and Northern Ireland Office’s inter-departmental disputes over the legacy of the Troubles.

Introducing the time limits,  ( Defence Secretary Ben)Wallace said: “For decades the men and women of our armed forces have been faced with the prospect of repeated investigations by inquest and police, despite the vast majority having acted in accordance with the rule of law and often at great personal risk.

“That is why the government will today legislate to protect our veterans against repeated reinvestigations where there is no new and compelling evidence against them and to end vexatious claims against our armed forces.

But Armed Forces minister and Afghanistan veteran  Johnnie Mercer followed this up with a tweet.

Mar 19

Equal treatment”. “New and compelling evidence must be required” Hundreds of Northern Ireland vets set to get legal guarantee they won’t face any more court witch-hunts. Big stuff alongside our bill yesterday from Northern Ireland office. As promised”

This suggests  that conditions for prosecutions over foreign conflicts and Northern Ireland may not be so different after all.

FM and  Dfm are of course split

in February Arlene Foster  expressed concerns  around certain provisions in the 2014 agreement, including the establishment of a Historical Investigations Unit (HIU) to re-examine unsolved murders.

Recently, as part of the deal which saw the return of Stormont, the British government pledged, within 100 days, to introduce legislation to implement a legacy deal.

It includes a HIU to look into Troubles killings.

In a letter  to then SoS Julian Smith  Foster wrote : “I think we need to revisit the Stormont House Agreement because what is being proposed, and we made this clear in our consultation response at the time, is not acceptable to the victims’ groups here and it’s certainly not acceptable to us.”

But Michelle O’Neill said the “agreement must be implemented in full, including the mechanisms for dealing with the legacy of the conflict, and cannot be cherry picked by the British government or the DUP”.

“The British government has been resiling from the commitments it made at Stormont House and has delayed implementing the agreement for more than five years, further delaying truth and justice to the victims and their families.. That is unacceptable.”

Other reaction logged by Rowan

AN ACT OF SPECTACULAR BAD FAITH

SDLP LEADER COLUM EASTWOOD: “This is about shutting down justice and shielding former soldiers…”

TANAISTE SIMON COVENEY: “We would not support a proposal to introduce any special measure or treatment, regarding investigation of state or non-state actors in Northern Ireland.”

ALLIANCE MP and deputy leader STEPHEN FARRY  “Under these new proposals, it is very likely that only a small number of victims or their families will see justice for the crimes committed against them..This is another example of this governments populist approach, this time dictated by a false narrative about vexatious claims.  No one should be above the law, and full investigations should take place and lead to prosecutions if the evidence is strong enough. Questions need to be asked about whether these proposals comply with Article 2 of the European Convention on Human Rights. The government must stand up for the rule of law and not try to subvert it…. We need to work towards a comprehensive approach to dealing with the past that has been fully consulted on and is compliant with international human rights standards.”

Queen’s University law professor Kieran McEvoy, the head of a team who drew up a model Legacy bill said:

Efforts on dealing with the past need to be benchmarked against three tests – whether it is consistent with:(a) binding human rights obligations under the ECHR (particularly Article 2 rights regarding to an effective investigation);(b) the Good Friday agreement, and;(c) the Stormont House Agreement, which remains the one legacy related effort to reach maximum consensus in NI over the last 20 years.

In its current guise, this vague and contradictory statement [from the UK Government] fails all three tests.. It has all the hallmarks of the breezy arrogance which characterises some senior figures in this government – populist, contradictory, short on detail and characterised by a bullish ‘let’s get legacy done’ approach with little substantive regard for the rule of law, the views of other stake holders (including the Irish government) or delivering on the needs of those most affected by the conflict i.e. victims and survivors.”

The police federation will welcome the rethink,  being completely opposed to the terms of the HIU

“There are too many deficiencies, too much imbalance, too little acknowledgement of the role played by former and serving Officers, and an underlying dangerous desire to placate those who wrought havoc and destruction. “The bomber and gunman cannot be viewed on a par with the RUC GC and the PSNI. If this consultation is taken forward into draft legislation, all it will achieve is to provide an immoral equivalence between the terrorist and the Police Officer, which we find morally repugnant and indefensible. “Our history cannot be re-written to suit the murderers and bombers at the expense of brave men and women who delivered the peace. “The Government has enough to contend with at present without the toxic mix of the past. It should scrap this effort to fix the past before it becomes an uncontrollable monster.

If its critics worst fears are realised, it is hard to see how the government proposals can be taken forward. The critics  however are holding some of their fire until the government explains what they mean by “  new compelling evidence.”  NI Attorney General John Larkin who basically supports  drawing a line under the Troubles   now  favours some restrictions on  interpreting the  European Convention of Human Rights and a  certification scheme drawing distinctions  between “ split second “decisions by security forces  on opening fire and planned attacks by paramilitaries.

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.

The Irish Times have put down a marker.

While the Northern Secretary has not totally ruled out investigating some past killings, he said he wants to end the cycle of reinvestigations into the Troubles that has failed victims and British army veterans alike.

Official figures issued last year showed that the PSNI Legacy Investigation Branch had a caseload of 1,130 cases touching on the deaths of 1,421 people. Lewis maintains that given the considerable time that has elapsed since many of these incidents took place it is vital that an effective information recovery mechanism is put in place before this information is lost forever.

The move is widely seen by nationalists as a response to continuing pressure, some of it exerted by British prime minister Boris Johnson, to devise legislation that will prevent prosecutions of former British soldiers involved in Troubles-related killings.

 The NIO were rumoured to be supporting the Stormont House ( Legacy) draft Bill including the HIU. They may have lost the battle with the Ministry of Defence which openly opposed it in favour of an end to ” vexatious” prosecutions. But the NI Troubles were not lumped  together with Iraq and Afghanistan. A loophole remains over  “new compelling evidence.”

The NIO are unlikely to be over burdened with running the Covid 19 emergency. They should use the time to explain themselves better over how to deal with the Troubles legacy. It’s just possible that  the government are starting to steer opinion round to accepting a general amnesty. Or perhaps they only care about former soldiers.