The long and winding road to dealing with the past stretches ahead at Westminster. Will it turn out to be a dead end?

All Northern Ireland parties and groups including victims are united on one thing. They are opposed to the UK government’s NI Troubles, (Legacy and Reconciliation) Bill. Nevertheless the Bill began its long passage to become law – or not –in the House of Lords last Wednesday. The Lords debate presents a good opportunity to air the issues in one place in this lengthy post. A vote will eventually be held on whether to recommend scrapping the Bill entirely or heavily amend it in the interest of reaching some outcome in a year or so, or kick it into the long grass for at least three years.

The Bill in effect closes down most legal process on the Troubles. It combines Truth Recovery and a legal review of the case load in a single body, the Independent Commission for Reconciliation & Information Recovery (ICRIR) under a senior judge. The commission would hear evidence from perpetrators in exchange for immunity from prosecution – a cushy deal you might think. But if there was no evidence against them why would they even bother to come forward?

The ICRIR replaces the idea of a separate stronger independent investigations unit.  To its supporters the government is only recognising the reality of the unlikelihood of successful prosecutions for lack of evidence – so why continue with expensive and lengthy legal process? The government  still  profess  hope that victims could still receive some truth through voluntary disclosure, even though hopes of  justice for most faded years ago.

The whole legacy debate is vitiated by struggle over the Troubles narrative which unionists and some Tories think republicans are winning helped by  clever lawyers.  “Lawfare” they call it and we’ll come to it later.

The junior minister Jonathan Caine a critic of his own Bill began by promising amendments  to stiffen the “ justice “ element,  creating  an offence of willingly to mislead the commission and giving it powers to revoke immunity where individuals have been found subsequently to do so. “We will disapply the Northern Ireland (Sentences) Act 1998 for individuals who choose not to tell the commission what they know and are subsequently convicted of an offence, so that they face a full rather than a reduced sentence, as well as increasing the fine for non-compliance with the commission.”

With that promise pocketed, the debate began. Nigel Dodds, former DUP deputy leader giving the classic unionist critique of  “one sided  justice”

The approach taken by this Bill is wrong and an affront to justice. It would extinguish the flame of justice for countless families. It would draw a moral equivalence between terrorists intent on bloodshed and those who served our communities with dedication and professionalism. The way to address legitimate concerns about vexatious investigations against veterans who served in Northern Ireland is not simply to impose a wholesale restriction on historical investigations or prosecutions. It is to restore balance, ensure that investigative activity is proportionate and bring an end to the growing culture of politically motivated actions against those who served in uniform. Closing down routes to justice arbitrarily would not be tolerated for hate crimes or gang crimes in GB.

Kate Hoey, NI born DUP supporting former Labour MP

A key point is that there is now an alternative to the less than satisfactory arrangements we have been criticising. Operation Kenova, headed by former Chief Constable Boutcher, is a working model of the way to deal with legacy that provides the information that many victims and survivors desperately want, and at the same time leaves open the route to justice where the evidence reaches the necessary threshold. For the last two years, more than 30 files referred by Kenova have been sitting with the under-resourced Public Prosecution Service for Northern Ireland

Nuala O’Loan former police Ombudsman, on the weakness of the commission’s powers of investigation and the illogicality of amnesty for  murder but not for rape.  She ripped the bill to shreds

.. One of the problems we have is that although most people who were in the security services and the forces in Northern Ireland served with great distinction and integrity, not all did. We have a significant problem in relation to many agents of the state. I think of people such as Stakeknife on the one side and those in the UVF on the other, who were engaged in terrible crimes. International bodies and eminent experts do not accept that the structures created in this Bill will satisfy the UK’s international and legal obligations. The powers available to the commission do not even appear to include unfettered use of police powers—the powers of the Secretary of State seem to extend even to the use of those powers. This Bill does not provide the existing right of access to information held by state bodies. There is an obligation on state bodies only to provide information and documents that are “reasonably required

The language of this Bill will make the work of information retrieval from the state much more difficult. The decision as to reasonableness—the Bill refers to information that is “reasonably required”—will be made by the state agencies, not by the commission. In many cases, I am sure that the MoD, MI5 and GCHQ will decline to provide access to much of the information they have. They will say this is necessary because the material is secret, or its disclosure may put lives or methodologies at risk. I have seen material classified as secret which should not have been. I saw that most recently when I was investigating the Metropolitan Police. The European Court of Human Rights has found that determinations of national security threats must not be arbitrary and must contain sufficient safeguards to give the individual adequate protection against arbitrary interference. I have seen methodologies protected that are no longer relevant. It is most unlikely that the commissioner will get access to what they need for review, or even for investigation.

We must add to these difficulties and restrictions the fact that the commission must grant immunity to a person who has requested it, and who has given an account of their own conduct that formed part of the Troubles that was true to the best of their knowledge and belief. Immunity is not possible for Troubles-related sexual offences. Both the Delegated Powers Committee and the Constitution Committee have said that the power given to the Secretary of State to define sexual offences should be removed from the Bill. But what sort of regime prohibits immunity for sexual offences but grants immunity to murderers?

Paul Bew. former Queen’s academic,  now chair of the Lords Appointments Commission, poured  cold water over the whole legacy process

I want to say some words in favour of this Bill.  I absolutely understand that, but the truth is that we have an entirely rancid situation in Northern Ireland. The continuation of lawfare is just a contributory to what is perfectly obvious to anybody who pays the most casual attention to public opinion in Northern Ireland: there is an increasing mutual contempt between the two communities. I fully accept the point that in part it is to do with a manifesto commitment and the issue of veterans, but it is also to do with the fact that the status quo is simply not tolerable, and in our discussions I think we should acknowledge that.

Denis Bradley,.. no particular friend to British Governments…. went into a television studio and said, “There is no realistic hope. Politicians are merely playing a game if they try to defend the idea that there is hope somehow. They are making a public display. They are actually misleading people….”

“We cannot deliver more justice now, but we may be able to deliver more truth”; again, that is part of the thinking behind the Bill. When the report came in, David Cameron made a fine speech, partly drafted by the noble Lord, Lord Caine, fessing up to what the British state had got wrong. The hope was, “Well, that’s it. That’s a dividing line. People will accept that we’re not afraid to criticise ourselves or our state’s performance.” The hope was that things would move on and the mood in Northern Ireland would change, but the mood did not change at all. It is as simple as that. I accept that it was a fine industry for the lawyers who worked in it, but the mood of the people did not change at all and the impact that David Cameron was aiming for in his speech ultimately amounted to zero..

it is important to understand that the status quo is radically unacceptable, defective, and helping to create an increasingly rancid and divisive public mood in Northern Ireland. At this point, the Bill has unified both communities, but it is a false unity. They each simply want the terrorists of the other community to be brought to law. The unity disclaimed against the Bill is not a real unity.

What has surprised me most this evening is how the Supreme Court ruling in the McQuillan case in December 2021 has not been discussed in any serious way. It has a very significant impact.  I accept that it is a complex ruling. However, the Northern Ireland police force issued a statement after the judgment:

“The Police Service welcome the clear legal ruling that there are no legal obligations arising from Article 2 ECHR to investigate these cases. We will now carefully consider the judgments and their impact on the legacy caseload.”

The Government have been attacked for depriving people of hope but, at the minimum, fairness requires us to say that the Supreme Court is depriving people of hope

I  am insistent because we have a problem. The public debate in Northern Ireland now—the way that lawfare operates and the way that these cases are now exhumed on a regular basis, which the Government are responding to—does not relate to what happened in the Troubles. To give a very simple example, the RUC, as was, suffered 309 deaths. It killed 53 people, including 10 of its own in error, carrying heavy weapons in police cars and so on. RUC officers were killed at five or six times the rate of their killing. This is very crude but factual. The killings committed by the republican movement were something like five times the rate of their own deaths, but no one would know that if they looked at the cases running through the courts in Northern Ireland, and at how lawfare was operating. No one would consider that to be the balance of killing and of suffering. Nobody would know that.

That is the problem that we are trying to address with this Bill and why I am willing to give it a degree of support.

 

Now we come to “lawfare” the struggle over the narrative Dean Godson,  director  of the right leaning think tank Policy Exchange castigated  influential lawyers associated with the CAJ …academics who are also directors of the Committee on the Administration of Justice—CAJ—a lobby group that is focused overwhelmingly on state-perpetrated violence and abuse. These academics have also come together with key CAJ staff to form what is known as the Model Bill Team to campaign against the Bill… This annual report by the CAJ effaces the crimes of loyalist and republican terrorists and their role in policing the ethno-religious divides and oppressing and terrorising entire communities, particularly working-class communities. The focus of the Committee on the Administration of Justice—and its central concern—is on anything it sees as state violence.

There’s no doubt that the attention  given  to  recent rulings on state violence such as the Ballymurphy  inquest and the verdict of manslaughter on a solder  for  shooting dead Aidan McAnespie 34 years ago have  stoked claims of  bias against security forces  when 1500 cases mainly  against  paramilitaries have gone unsolved. But the charge was dismissed some time ago by the lead of the model  bill team Prof Kieran McEvoy in a talk to the prestigious  British  Academy of which he’s a member

To summarise, the witch-hunt narrative is fake news, essentially. Since 2015 the DPP of Northern Ireland, the Director of Public Prosecutions, has initiated 17 legacy prosecutions, eight against Republicans, four against Loyalists and five against British soldiers. The problem in terms of the state killings during the conflict is that a lot of them were never properly investigated in the first place, so for example, between 1970 and 1974 there were 170 army killings here in Northern Ireland. 63 per cent of those who were killed were indisputably unarmed, 12 per cent of those people were actually armed, 14 per cent of people were possibly armed. No prosecutions at all took place during that period. The investigations were done by the army themselves, by the Royal Military Police. They were very poor investigations, sometimes taking the form of a debriefing. Witnesses often weren’t contacted or interviewed, soldiers weren’t interviewed under a caution. They just don’t stand up as proper investigations.

So what has been happening is as those old cases have come up and been properly investigated by the police now, in a small number of cases evidence has emerged that would meet the standard for prosecutions, and a small number of people – five cases, six soldiers – ended up before the courts. The bottom line is no one is going to jail for more than two years anyway under the terms of the Good Friday Agreement. State or non-state actors – the maximum anyone can go to prison for is two years. So how do we do this? How do we square this circle? On the one hand, addressing the need and rights of victims to information recovery about what happened during the conflict, and second the political pressures, which are primarily in Britain, around addressing the needs of elderly veterans who served here.

So here’s my suggestions as to how we square the circle. First, step one, we actually introduce the Stormont House legislation that the government agreed to with the Irish government and the five local political parties in 2014 and has been stalling on ever since, and live up to the commitment that was made in January 2014 and restated in January 2020. So introduce the legislation that will bring some closure to victims after all of those years and work in partnership with the Irish government and the local political parties. No more unilateral moves.

Secondly, in terms of addressing the veterans’ issue, I think all of us who have worked on these issues recognise that it is a political pressure point. This is a populist right-wing Conservative government, and it is addressing people who have significant concerns about the military. So it is a significant problem there that needs to be addressed. Amnesty is not the way forward on that, because first of all an amnesty would apply across the board to the state and non-state actors. Indeed, any mechanism that we look at will inevitably apply to both state and non-state actors. Amnesty is opposed, here in Northern Ireland, across the spectrum, both by nationalist and unionist parties. None of the main political parties on this side of the water have argued for an amnesty, so that’s not the way forward.

What we would suggest is kind of a halfway house. What should happen is that the Stormont House Agreement should be implemented, therein addressing the needs of victims. However, there is a legal mechanism that already exists under the Northern Ireland Sentences Act, which was the legislation introduced to facilitate the early release of paramilitary prisoners and indeed any serving soldiers in 1998 under the Good Friday Agreement. It’s the legal mechanism that establishes the two-year max jail time for conflict-related offenses. The power already exists to reduce that two-year max to zero. What would happen in that context is that one would still have investigations, you would still have prosecutions, you would still have a trial if the threshold was met, but no-one would go to jail. That’s the compromise, in effect. The rule of law is upheld, victims would get all of their rights addressed by the mechanisms of the Stormont House Agreement, but the political problem that the government is facing around the pressure on veterans, they would be able to turn to their back benchers and say, “Look, no-one is going to jail here, that’s our compromise”.

That’s our job as academics in all of this – to try to encourage lawful and human rights-compliant and politically workable compromises.

I see no necessary conflict between the different roles of lawyers and historians in dealing with the past. Rather than duplicating David McKittrick’s monumental Lost Lives with a timeline as the Bill provides for, access to state archives should be negotiated with independent historians. One of them Tom Hennessy has described the approach

I believe that complete access to the archives, without political interference, is the only way to secure a balanced and proportionate picture of the past. In particular, intelligence files will allow historians to trace the internal dynamics of paramilitary organizations as well as the state’s motives. This will complement oral history not replace it.

A process can be devised to hold individuals, organisations, and institutions accountable for their decisions to keep to or go against accepted political, social, moral, and legal standards. Reconciliation is a long-term process and must not be directed at one actor in a conflict. It must include all participants. My concern is the Agreement proposals are seriously unbalanced. Without archival history they will neither address the legacy of the past nor bring reconciliation in the future.

I must take issue with the claim that any ‘self-respecting historian’ would be unwilling to participate in such an initiative’ as erroneous. Historians seek out the context for what was said and done. Archival documents can give one a window on decisions at the time. They are not written with a view to justifying a decision, taken in the heat of the moment, to future generations. They are about the conditions and pressures of the time one is assessing. This has implications for forgotten voices: oral history can give agency to those silenced by contemporary narratives; likewise archival evidence can restore voices lost by the dominant narrative now. They are recorded in the archives.

The path of historical research has been taken by many of our western European neighbours and shows an alternative way to the dealing with the past. This can make for uncomfortable reading for many.

When President Emmanuel Macron watched antiracism protests in French cities during the summer of 2020, he saw the poison of the Algerian War still coursing through society. This war – fought between 1954 and 1962 – had been hugely destructive. Hundreds of thousands of civilians were killed, more than two million people were forced from their homes, bombs went off on both sides of the Mediterranean, officials, politicians and journalists were targeted for assassination, and the French Fourth Republic was overthrown.

Macron called on France to ‘look at all of our history lucidly together’. On the advice of the historian Benjamin Stora, Macron committed to running oral history projects, appointing commissions, publishing history books, opening archives, and creating a museum. He did not apologise, he did not repeal the amnesty, and he did not seek the approval of Algiers.

In Germany, government departments commissioned official histories of their conduct during the Nazi era. The Dutch government charged the Institute for War Documentation with authoring a historical report on the fall of Srebrenica during the break up of Yugoslavia. Spanish archives declassified papers on Franco’s dictatorship. The Swedish government funded studies into the activities of their intelligence services. Austria’s federal authorities tasked a historian with setting up a museum of contemporary history.

What do historians offer societies seeking to come to terms with the past? A historical narrative can incorporate multiple voices and perspectives. Alongside stories about suffering, struggle, and service, it can explore the strength shown by ordinary people going about their everyday lives.

Historians can capture complexities, ambiguities, and contradictions. We can put into context the acts and omissions of people in the past – but without ever allowing understanding to become excusing or endorsing.

While neither historians nor the sources and tools we use are neutral, we do practise objectivity. Historians aim to be accurate, comprehensive, and consistent. This set of practices are less a scientific procedure and more a code of ethics. Our fellow historians around the world make sure we stick to it. We check each other’s scholarship both before and after it is published.

Watching historians at work and seeing what we can deliver has won over sceptical European publics. The German official histories debunked the myth that civil servants had been non-political. Far from being a whitewash, the Dutch report brought down the government. Swedish historians secured access to the files of the intelligence services. The Austrian museum received awards for how it explored the civil war of the 1930s as well as the Nazi years.

Could Northern Ireland do what other parts of Europe have done? Polls and survey show the majority of people here broadly agree that the Troubles harmed all communities, that the legacy of the past needs to be addressed, and that reconciliation should be embedded. We owe it to ourselves to fully understand what happened in the conflict not one version of it.

This involves a commitment to basic honesty and integrity; an absence of wilful distortions or omissions; and a commitment to accepting the possibility of the revision of particular interpretations in the light of further evidence.

A multi-disciplinary approach, including historical procedures, will produce a multi-narrative perspective. The model, as currently outlined in the Stormont House Agreement, will not.

 

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