The comprehensive case for rejecting general amnesty without further legal process.


Scene outside  the Law Courts in Belfast during the Ballymurphy Inquest 

The Model Bill team of NI academics led by Profs Kieran Mc Evoy and Louise Mallinder and the Committee for the Administration of Justice has delivered a scathing analysis of the UK Government’s proposal for an amnesty or statute of limitations, which they’ve entitled “Addressing the Legacy of Northern Ireland’s Past”. The team had previously produced a report for making the Stormont House Agreement work effectively.  At its core, the SHA  among NI parties (although not universally approved), proposed to set up the new Historical Investigations Unit to investigate evidence for potential prosecution as recommended for decades. The Model Bill team’s report included suggestions for sentence reduction for the few convictions believed likely, or suspending them altogether. This it seems, did not satisfy the demand within the Conservative party to cease submitting veteran soldiers to further legal process.

Last year the UKG abruptly replaced the SHA with a general amnesty proposal, one which has since been opposed by every NI Party, the Irish government and the Labour opposition at Westminster.  The outgoing Lord Chief Justice Declan Morgan has declared he expects any general Amnesty Bill would be challenged in court ( m,eaning most probably the Supreme Court). The Model Bill team’s critique is briefly summarised below and should be read in full.   

“Despite repeated commitments to introduce the enabling legislation (most recently in January 2020), the current UK government now appears to have unilaterally abandoned the SHA. In July 2021, the government published Command Paper 498 on Addressing the Legacy of Northern Ireland’s Past. This paper proposes a sweeping and unconditional amnesty which would end all legacy-related ‘judicial activity’ (i.e., current and future legacy prosecutions, inquests and civil actions) as well as all police and Office of the Police Ombudsman investigations. The paper also suggests the establishment of a new Information Recovery Body. The latter, based on the information provided, would not have sufficient investigative powers to conduct effective investigations into conflict-era deaths as legally required by Article 2 of the European Convention on Human Rights. In addition, the command paper includes various proposals for developing oral history and memorialisation initiatives. In the context of an amnesty and the absence of effective investigations capable of delivering truth, justice and accountability, there is a real risk that the credibility of any such reconciliation-focused work would be irreparably damaged – being viewed as ‘soft options’ to disguise the broader drive towards impunity.

Given the dubious veracity of some of the claims made in the command paper, and its misreporting of the government’s analysis of its own public consultation on legacy in 2019, we remind officials and ministers of the requirements for honesty in policymaking under the civil service and ministerial codes respectively, including the duty in the former not to ‘ignore inconvenient facts or relevant considerations when providing advice or making decision’. In a similar vein, we also ‘fact-check’ a number of the assertions and assumptions in the report as well as the ways in which some international experiences are misrepresented – particularly the South African and German experiences.

An Amnesty for State and Non-State Actors

….there is no precedent for the type of sweeping unconditional amnesty envisaged in the command paper. It further notes that none of the participants during the SHA negotiations argued in favour of such an amnesty and that – in the government’s 2019 analysis of its own public consultation – a clear majority of the 17,000 submissions were opposed to such an amnesty

While the government paper uses the term ‘statute of limitations’, this is a misnomer. Statutes of limitations are used to set an explicit time limit after which criminal investigations and prosecutions are not permitted, usually to allow time for cases to be investigated.

Given that the Northern Ireland conflict ended in 1998 for most intents and purposes and the fact that this amnesty appears specifically designed to close down effective investigations as guaranteed by Article 2 and Article 3 of the European Convention on Human Rights (ECHR) as well as civil remedies, it is highly unlikely to meet these standards and to thus be deemed lawful.

The chapter also compares the proposed UK amnesty with 289 others from around the world based on a database created by Professor Mallinder covering the period 1990-2016.2 It notes that only 25% of those amnesties included state actors, of which only 5% were applied to state actors only. It also noted that the clear majority (63%) of amnesties were conditional (e.g. requiring participation in truth recovery or other processes). Only 6% of the 289 sought to exclude civil remedies and none have been identified that sought to restrict coronial inquests.

The chapter notes that it is really quite remarkable that the command paper fails to mention that: (a) prosecutions remained available in the South African context; (b) (unlike the UK government proposal) obtaining an amnesty was conditional on offenders fully disclosing their political offences to the Truth and Reconciliation Commission; (c) of the 7,116 amnesty applications received, the SATRC only granted 1,167 full amnesties and 139 partial amnesties; (d) victims had a right to be present at the amnesty hearings which were presided over by a judge, to make oral and written statements and to be legally represented at such hearings; and (e) amnesty applications concerning the most serious of human rights abuses were televised so that the public could hear the ‘full disclosure’ of the applicant’s involvement in those violations.

This chapter also compares the proposed UK amnesty with that introduced by the former Chilean dictator General Augusto Pinochet, generally regard as one of the most egregious amnesties since World War II. The proposed UK amnesty is significantly more expansive in the impunity that it would create: (a) the Pinochet amnesty excluded certain offences (e.g. sexual violence, the abduction of minors), the UK amnesty does not exclude any offences; (b) the Pinochet amnesty applied only to the first five years (the most violent period) of the 17 year dictatorship, the UK amnesty has no temporal limits and may extend beyond the Good Friday Agreement; (c) the Pinochet amnesty formally excluded cases already before the courts, the UK amnesty would stop all ongoing and future legal proceedings; and (d) the Pinochet amnesty formally only applied to criminal cases, the UK amnesty would include criminal and civil cases, as well as coronial inquests and investigative processes. Finally, this chapter notes that the Pinochet amnesty was enacted by an illegitimate military dictatorship that was subject to strong international condemnation.

 A New Information Recovery Body

….there would be no sanction for non-compliance with a request for disclosure from the Information Recovery Body…. the only people who may end up being prosecuted for conflict-era matters may be either state official whistle-blowers or journalists who report on their disclosures.

Given the limitations of the IRB’s powers of disclosure and the voluntary nature of witness statements, the chapter concludes that the IRB is not going to be capable of delivering effective investigations that are compatible with the legal obligations under the European Convention on Human Rights ECHR.

.Oral History should; be run by an independent body and party devolved to local groups as well as lodged with PRONI

(UKG) proposes to fold ‘vital aspects’ of the Implementation and Reconciliation Group agreed under the terms of the Stormont House Agreement into the new proposals on oral history and memorialisation. This includes the prospect of giving ‘serious consideration’ to ‘statements of acknowledgment’ by ‘the various actors of the Troubles’. This chapter notes that such a process of acknowledgement has significant potential. However, it argues that – as with oral history and memorialisation initiatives more generally – apologies or statements of acknowledgement can only deliver for victims alongside truth, justice and accountability, not as an alternative to such measures. In light of the widespread opposition to the government’s current proposals, this chapter suggests that it is difficult to envisage any of the key actors coming forward to apologise for anything – or indeed to envisage victims viewing any such apology or acknowledgement with anything other than disdain.

Inquests and Civil Cases

The ‘slow waltz’ is a term that the former Police Ombudsman discovered marked on some police intelligence files when examining the police investigation of the Loughinisland murders. It refers to a deliberate strategy to delay access to such materials, including to other investigating officers. As this chapter explains, the term is now more widely used to describe a broader strategy of delay, obfuscation and prevarication by state agencies…..

….it is rather rich for the government to point to ‘delay’ as a key motivator for ending victims access to the courts on legacy matters when a key reason for such delays in many court actions is the delaying tactics of state agencies themselves. This chapter also argues that, in light of the deep organisational culture within many state agencies that is resistant to disclosure of conflict-related materials – even when those seeking the information have full police powers or judicial powers of discovery – it is simply not credible to suggest that the proposed IRB (without clearly defined legal powers) would achieve voluntary information retrieval from the relevant state agencies. The chapter outlines how the key purpose of a coronial inquest is information recovery – ‘to investigate fully and explore publicly the facts pertaining to a death occurring in suspicious, unnatural or violent circumstances’ and that it is for the coroner to decide ‘how widely the inquiry should range to elicit the facts pertinent to the circumstances of the death and responsibility for it.’ It explains the evolution of the package of measures with regard to inquests including reference to improvements in the coronial system and the Lord Chief Justice’s ‘Five-Year Plan’ to deal with outstanding inquests.

In order to offer a practical illustration of the utility of inquests as a route to truth recovery the chapter summarises the background and findings to the Ballymurphy Massacre inquest completed in July 2021.

With regard to civil cases… the chapter points to the case study of the civil action taken by lawyers with regard to the Ormeau Road Bookmaker murders in 1992. Some of the more sensitive information concerning the allegations of collusion in that case was held in camera, in Closed Material Procedures. Despite that limitation, as a result of discovery in the open court proceedings, lawyers representing the families were able to access significantly more materials than had been made available to the OPONI investigation into the same case – despite the latter having full police powers of search, seizure, right to access intelligence information and so forth

…any attempt to interfere with the right of victims and survivors to judicially review legacy-related decisions by public authorities will be fiercely resisted. Moreover, any such a move would be in breach of the Good Friday Agreement (GFA), both in terms of its commitment to the incorporation of the ECHR into domestic law and in terms of the devolution of powers in Northern Ireland.

Conclusion

The report concludes by arguing that due to the lack of public confidence in the current UK government’s position on legacy, trust will only built by the UK accepting: (a) that the rule of law must be central to the legacy process and as a result the government’s ability to introduce an amnesty will inevitably be curtailed and will also require genuine Article 2 and Article 3 ECHR compliant investigations. (b) that the Stormont House Agreement remains the basis for maximising political consensus on legacy. (c) that protecting the Good Friday Agreement in all its parts remains the cornerstone of the Northern Ireland peace process. It argues that there are ways of lawfully reducing conflict-related sentences from two years to zero while still upholding the rule of law, implementing almost all of the SHA (other than ‘jail time’) and acting in a way that is compatible with the Good Friday Agreement. Finally the report respectfully urges the UK government to return to such a lawful, honourable and politically workable position.”