The wholesale opposition to the UK government’s new minted Legacy Act was predictable and expected. At the same time the good faith of the all the politicians involved is suspect, as Newton Emerson pitilessly described over a year ago.
At every level, rejections shamelessly cancel out. All Stormont’s political parties oppose the legislation, currently being rushed through Westminster. But unionists object only to an amnesty for terrorists; Sinn Féin to an amnesty for former security force personnel.
Protecting soldiers is the Conservative government’s blatant agenda.
Although the opposition has been predictable has it been accurately priced in? The government’s investment in the awkwardly named ICRIR ( Independent Commission for Reconciliation and Information Retrieval) is a gamble. The Commission was set up even before the Act was passed in a clear attempt to bounce involved parties into eventual compliance by a beleagured government with a year to run until the general election which may prove its nemesis. On the face of it, Labour’s pledge to repeal the Legacy Act hardly augurs well for its survival or even startup. The reputation of the Chief Commissioner the former Lord Chief Justice Sir Declan Morgan is on the line. He knows the risks yet still appears to believe they’re worth taking, if only to get something – anything- going to work on. Functions identified separately in the Stormont House Agreement formula are combined in an essentially all – powerful bureaucratic whole. Even among critics the belief is strong that little new evidence is available from police sources. Any new evidence will no longer be tested in court. But 1000 cases still remain to be processed for reporting to victims. Truly fresh information will only come from other official records of the “ dirty war” and personal testimony under conditional amnesty . A blanket amnesty has been avoided as a stage too far, at least at this stage.
Can the Commission survive the critical onslaught? It now remains to be seen if victims will apply to it for information, however eagerly desired. Morgan has said he would resign if the courts agree with many critics that the Act is incompatible with the European Convention on Human Rights and its Court ( ECtHR).
A decision is now awaited on whether the Dublin government will take the UK Government to the Strasbourg Court. This is a key example of how the GFA partnership has languished in recent years even on the central aspects of human rights. Dublin like the NI parties was not consulted on the Legacy Act and resents it as an act of British unilateralism.
But Irish hands are no cleaner than British.
Successive Irish governments have operated “a unilateral amnesty for the IRA”, as former minister for justice Michael McDowell confirmed last year. There were theatrical intakes of breath at this statement of the blindingly obvious.
Moreover, early Dublin governments amnestied each other’s forces for most the legacy of the 1920s Troubles. Had they continued to litigate in a similar time frame they’d still be at it when our more recent Troubles were reaching a climax in the early 1970s.
Criticism of the Legacy Act has about it more than a whiff of performance art. Politicians prefer to take principled stands which cost them nothing rather than take responsibility which carries a price.
The Commission is the only show in town. Despite its obvious limitations, all stakeholders should engage with it through cooperation and challenge as appropriate. There is at least an opportunity here to transform it into something closer to what victims deserve and society as a whole needs. With real public backing the UK government will find it much harder to resist pressure for effective disclosure and for nationalists including the Dublin government which may soon include Sinn Fein, to cease treating omerta as an immutable fact of life .
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
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