The British government’s announcement of a statute of limitations has not only united all parties against them. It has also exposed the weaknesses of everybody’s positions including their own. All other parties are insisting on a role for justice while admitting there’s very little hope left of achieving it. As justice for victims and relatives is unobtainable in most cases, what is the point of holding out for years for the remote chance of a trial?
After decades of deadlock and dithering the UK government have given themselves just under a year to legislate for a de facto amnesty. For such a massive legal and constitutional measure, this is taking it at breakneck speed – on the run so to speak – after a few months of consultations about an apparently pre-determined outcome . This is UK government activism on stilts, otherwise known as Westminster “ unilateralism “ like their stance on the Protocol and deplored not only by Dublin and local nationalism. At the very least, it will concentrate minds afresh.
The time scale raises huge questions. Could the British government go it alone without the consent of the other GFA partners? Would it even be legal? Or after the initial emotional reaction could UK government pressure create cracks in the wall of rejection and expose the reality that commitment to a trial process is at the heart of what’s holding up disclosure? The patient sifting of the most explosive evidence in the Stakeknife inquiry is a model for some; but not it seems for the UK government, according to their Green Paper
Operation Kenova, which is investigating or reviewing around 200 Troubles-related deaths and has so far operated for 5 years with an annual budget of £6million, has not yet led to any prosecutions
There are awkward questions behind relying on the current lack of evidence for such a drastic move. With the development of DNA and other inquiry processes for cold cases stretching back decades, is it really impossible to unlock some fresh information? In many other areas, the British public appetite for searching inquiry is if anything increasing, ranging from Hillsborough stretching back 30 years and the murder of freelance detective Daniel Morgan 24 years ago, involving alleged police cover up, to the endless pressure on MI5 after jihadi suspects slipped through the net with disastrous results. Should the Troubles be exempt?
Is it really the case that all legal process could or should be disposed of so readily? That a few key cases like McCann and Soldier F prove the paucity of the whole system? The government’s announced plan may be threadbare but it’s certainly radical. They will even try to halt ongoing cases and lined up inquests. At least they have the grace to admit this may be “challenging.”
Official disclosure is promised with the usual caveats for the protection of individuals and “national security.” Otherwise the truth recovery process seems to be entirely voluntary. There is the lame hope that if the state actors come forward, so will the paramilitaries. There is no dynamic, no pressure here except individual conscience. May we now expect to see a series of former special Branch, MI5, and army commanders coming forward to set an example followed by say, a greatly expanded Boston College experience for the old paramilitaries, now under full legal protection? To adapt John McEnroe, they cannot be serious.
However the new powerful fact is that the amnesty genie is now out of the bottle and cannot be put back. The government argues that it is the cruelly faint hope of faint hope of legal accountability that is preventing accounts of what happened from reaching families. Tendentious or valid?
It’s my fault no doubt but I have never been able to understand the position of victims groups. The reason for murder lies as much in the identity of the victim as the perpetrator. Clearly official public respect for the life taken is the minimum requirement and the taint of terrorism or unlawful abuse removed in appropriate cases; but to what extent is public accountability feasible short of confession, or in many cases even wanted? Politicians with their rival narratives play a game that will always end in score draws. It will take decades to plumb the depths of collusion in state archives even where they exist. At least the same applies to paramilitary Omerta which claims to be a code of honour. Might it become like decommissioning arms under some independent scrutiny rather than dumping them, a new code of reconciliation? Worth asking, at least. On the other side, it is eminently worthwhile to begin pressure for fresh access to produce a new da Silva type report to test the limits of official disclosure under amnesty conditions.
Meanwhile the basic question arises. Can any truth telling be wholly voluntary? Should any amnesty be based on a single grand act of comprehensive cancellation? Would it even legally stick?
It remains a puzzle as to why the UKG reneged within a year on the Stormont House draft Bill providing for the long proposed independent Historic Investigations Unit. The declared reasons are poor value for money (£150 million in five years) and an unacceptably longer legal process. The other reason is sotto voce in the Green Paper but shouted out in the Commons – to carry the exemption from “vexatious prosecutions” for military service in Iraq and Afghanistan over into service in Northern Ireland.
The politicians have spoken out but so far most lawyers and experts have so far held fire. It is the most open of secrets that with few exceptions (including Nuala O’Loan) the futility of prosecuting is accepted by lawyers and most others in the justice and policing system. But that is very different from abandoning legal process entirely. So far only Barra McGrory the former DPP has spoken out against . He defends not the trial process but civil action and the searching inquest system launched two years ago under the Lord Chief Justice. This most recently produced the damning evidence and conclusions reached by the LCJ’s newly appointed successor into the Ballymurphy killings
“This is a shocking proposal issued by a government which claims to adhere to the rule of law in that is seeks to abolish completely all meaningful and judicial accountable processes,” What these proposals seem to do is to abolish the right of the individual to seek accountability by way of a judicial process, whether that be by way of inquest or civil litigation for the wrongs that people perceive were done upon them and their relatives.
“The alternative is some form of information retrieving process about which we have very little detail in the paper. And the language is worrying, because the language of information doesn’t give us any assistance as to who will determine what information is forthcoming, what the processes are and most of all absent is any mention of the word of accountability in terms of any judicial finding that someone has done a wrong on another.
Developing his ideas on closure last year the former Attorney General John Larkin introduced an important element of public accountability into the present secret assessment of evidence carried out by the DPP. A senior judge would certify cases for prosecution with the clear implication that this would be much quicker and cheaper than the traditional system. Very few cases would be certified. The Human Rights Act would be amended to deter prosecutions for acts committed before October 2000. This would appear to allow state actors to qualify for the equivalent of the prisoners’ release scheme of 1998; although some would argue they qualify already.
This new provision simply applies a heightened filter to all cases involving qualifying offences irrespective of the job description of the suspect. It will, in all likelihood, prevent investigations where what is at issue is a split second error of judgment, and it will place no barrier in the way of prosecuting those who set out deliberately to kill…
My object in advancing this suggestion is to protect all of us, those who served and those who did not, from the potentially lopsided criminal justice burden of the troubles, and to do so in a way that is reflective of a sound and almost universally held moral sense within Northern Ireland and beyond, that there is a profound gulf between, on the one hand, A’s planned killing of B or C, and, on the other hand, A’s killing of B in the context of unexpected and unwished for circumstances. The third suggestion relates to the future shape of the ECHR itself. I suggest that a future protocol should re-establish the primacy of sovereign states as the creators of international obligations.
Apart from meagre results, the best arguments against the present legal process its deadly slow pace and the lack of transparency in its elite decisions, This is the price worth paying for the independence of the legal system and the judiciary.
But if the review of cases could be speeded up by a certification scheme for cases to come to trial (unlike a stay out of jail card for on the runs as rejected in 2005) and the number of key inquests expanded , public honour might be satisfied.
The government have not yet had the last word. But we have surely reached the beginning of the end for legacy solutions. There is an opportunity here beyond grand standing for the Assembly. Can they take it?
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