Dealing with the Past is now in limbo. For the sake of victims and the government’s honour, a prompt reset is required

• Chief Legacy Commssioner Sir Declan Morgan former  Chief Justice   

What does the future hold for Troubles victims and relatives now?  Probably as long a future as ever without resolution, before sliding into history.  You might think the reason for most killings lies as much in the identity of the victim  as the perpetrator. But people want to know more; could  the murder have been prevented, a claim of mistaken identity,  the phone wasn’t working,”  pour encourager les autres the classic terrorist motive and the conspiracy behind it.  And they want the answers delivered in the dignity of a public setting  preferably in court.  Arguments are held over high principle and harrowing circumstances. Almost never is challenged  the main reason for so many individual frustrations, the  inability after years of  process to  provide enough evidence to  go to trial. .

This is one of the main reasons why Declan Morgan took on the job as chief legacy commissioner. His is I suspect a targeted approach, not fully declared. Although as chief Justice he had become the leading exponent of  tackling  the huge backlog  of 1000  past cases  – through inaugurating a new and effective  system of inquests, for example into the Ballymurphy “ massacre –  he agreed to take on the leading  role of the Legacy Commission to  end  legal process. Why? He  could see that the new enclosed system  might well be in breach of the European Convention in Human Rights. And that letting British security forces off the hook was a blatantly inadequate and one sided motive for “drawing a line under the Troubles.”  But Morgan had lost patience with the inability of politicians to agree on the Stormont House proposals for a more rigorous system for uncovering evidence for trial.  Yet  what the Legacy Act and its commission have achieved so far is to unity of a kind  – unity of all sides against them.

The gulf between the Act and Justice Colton’s ruling is best expressed  not in complicated legalisms but over the basic purpose of the whole enterprise. The clue lies in the title of  awkwardly named Independent Commission for Reconciliation and Information Recovery (ICRIR) which Morgan heads up . The key word is “reconciliation”. In his mammoth 203 page judgment Justice Colton bluntly  dismissed it when he ruled against the offer of conditional amnesty in exchange for information.

It is arguable that the provision of such information could contribute to reconciliation.  However, there is no evidence that the granting of immunity under the 2023 Act will in any way contribute to reconciliation in Northern Ireland, indeed, the evidence is to the contrary. 

Colton threw Morgan a bone by instancing his “ huge” judicial experience and conceding that the Commission is  “capable” of carrying out ECHR-compliant investigations into Troubles-related deaths and offences.

But will victims  come forward to ask for investigations  to proceed  when the Commission is under  a dark cloud of waiting  for the UK Government to appeal against Colton all the way to the Supreme Court and waiting on a decsion on proceeding with the Irish government’s challenge in Strasbourg which could take years?

Politicians, human rights lawyers must make their positions clear. Above all the British Government.  Morgan himself is planning his considered approach before the commission goes live in May. They haven’t got much time.  The most serious inhibitor on proceeding is the court’s ban on the offer of conditional amnesty for perpetrators under investigation.  Without amnesty what’s the point?

The alternative route  is the Commission’s access to state records which it insists is considerable. Scepticism is huge over the role of national security. The UK government must  lay out its  conditions before the Commission proceeds.

Perhaps the nearest to a model we have is the Kenova inquiry system set up to investigate 70 cases at a cost of £40mn.   It  publishes its report on its  most notorious case next week  on the informer Stakeknife next week, The DPP announced  in advance there will be no prosecutions. One of the limitations is the inadmissibility  of intelligence evidence in court. One way or another, amnesty lives.

Might the Kenova  methodology  provide a model for the Legacy Commission? They might be able to give a  similar narrative of what happened in future cases . Would legally required redactions to protect individuals leave us with much on the record to satisfy victims and the wider public interest?

Dealing with the Past is in limbo, No one is  surprised.  There is little here to satisfy both the humanitarian cause of victims  or the often  politicised demands  of politicians, some lobby groups and human rights lawyers.  Journalistic and academic research keeps on uncovering deep laid plots  of collusion. It is hard to understand how  special branch, army and MI5 handlers were not themselves breaking the law when they  turned  a blind eye to the murders  their informers were committing to maintain their own security and credibility –  or worse, let them be executed. In turn supporters of the security forces continue to claim “ one sided justice” as  omerta is maintained by the IRA in particular.

Political controversy will continue in many forms. Justice Colton’s finding that the Legacy Bill was in breach of the Windsor Framework, a fact the UKG  was blatantly supressing will send the DUP’s internal critics into a frenzy at the  prospect of  the involvement of the  EU Court of Justice so loathed by all stout Brexiteers.

Hilary Benn the shadow NI Secretary has repeated Labour’s pledge to repeal the Legacy Act.  He should surely have discussions  with Morgan and the Commissioner for Investigations Peter Sherdian on the implications for the Commission which is continuing to make staff appointments.

Meanwhile Kieran McEvoy’s model team is  waiting in the wings  to revive their proposals for the Stormont House Agreement.

Brian Walker

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