Sir Declan Morgan Chief Legacy Commissioner
The new Troubles Bill going through the Commons lists no fewer than 140 amendments , most of them designed to appease the mountain of critics in GB across the parties who are passionately opposed to more trials like the virtual show trial of veteran Soldier F in the Bloody Sunday case. While this trial looked like a deliberate attempt to demonstrate futility, the verdict now aspired to is Never Again, Why repeat such a sad farce? Also deemed “vexatious” were repeat inquiries held many years after the first – though far fewer than legend has it. These were dubbed the unlovely and clearly partial nickname of “ rinse and repeat.”
The Bill is receiving scant scrutiny – perhaps because the Government thinks it has met most of the objections anyway. While the Bill doesn’t go the whole hog of the discredited Legacy Bill of the previous Conservative government by abolishing virtually all trials, it clearly envisages very few if any against soldiers. Quite striking is the departure from the carefully balanced tone of 1998 and even the Stormont House Agreement proposal for a Historic Investigations Unit in 2014. What happened in the meantime? The end of a threatening IRA? An upswing of British national patriotism less required to make compromises in the interest of peace? Critics of today’s legacy approach don’t get a look in. There are no votes in it from them, nothing worth appeasing. It’s all about our boys.
The overarching aim is expressed at length and in plain sight – much the same as its predeccessor – to curtail the whole legacy review process . Opinion in NI will be divided on familiar lines, unionists and small and big c conservative lawyers accusing transitional justice lawyers and nationalists of waging “lawfare ” by mounting endless legal challenges at great expense for meagre results, and grandstanding over disturbing inquests like the Ballymurphy “massacre”- one at least that cannot easily be dismissed. Could Ballymurphy really be a case of suitable treatment by the Legacy Commission? And even more to the point, could any prosecutions be mounted against the soldiers involved in that dreadful episode now? Whither truth recovery then, never mind justice? Critics will be no more likely to welcome the Troubles Bill than they did its predecessor.
This exercise may have finally given up on satisfying all lobbies. Much depends now on the response of victims groups to the recast Legacy Commission currently dealing with about 120 cases with.an uptake of 11 per month. Will security forces as victims receive a hearing too? If the Commission under Declan Morgan can’t come up.with some adequate answers, then nobody can. Best to judge it by results will be the government’s case, rather than waiting for some ideal system.
Truth recovery rather than elusive justice is the avowed priority. But as for strengthening truth recovery, there’s little in this Bill to suggest greater disclosure by state actors like MI5.
“Equivalence between state actors and ” terrorists” is specifically ruled out.
Judicial reviews in such cases may be harder to obtain.
As this Bill has been brought within the new framework with the Irish Government, we may assume it has Dublin’s approval. They have promised cooperation with the Legacy Commission in answer to the Commission’s complaints. The extent of Dublin’s participation in the legacy process remains to be seen.
The main task of enquiry is as before, devolved to the recast Legacy Commission whose work will be monitored by police and the UK Attorney General
The leading roles played by the NI legal system such the DPP and the PPS will be shared -i,e, dominated? by the British Attorney General who has an independent role but is also a government minister.
Judicial reviews and Troubles inquests will be curtailed
The protections for former soldiers and limits to process are listed below
This amendment introduces a significant package of amendments to the Northern Ireland Troubles Bill to provide lasting protections which ensure former Armed Forces and police personnel are treated with fairness, dignity and respect.
- New measures will put into law a recognition that there is no equivalence between soldiers and terrorists, and ensure that the uniquely challenging context that front line soldiers were operating under is properly considered.
- Amendments will also require the (Legacy) Commission to consider if there is any new or compelling evidence before it can require the participation of a witness.
- Further assurance around prosecutorial decision making with an amendment requiring the consent of the Attorney General acting quasi-judicially to proceed with any prosecution.
- This amendment will ensure that individual veterans are not contacted unnecessarily, as formal state disclosure must now be undertaken first. It also requires consideration of whether compelling new evidence is known or reasonably expected to exist, prior to contacting a witness.
- This amendment makes clear that the Bill does not allow the lawful actions of soldiers in the course of duty to be treated as equivalent to the actions of terrorists. It recognises the circumstances in which veterans and former police officers served, specifically that they were operating in a particular operational context during violent political unrest, and recognises the circumstances in which they needed to make decisions in deploying the use of force to prevent harm.
- Protection against cold calling. We understand stakeholders’ concerns about veterans being cold called by the Legacy Commission without warning. A protection from cold calling was originally intended to be delivered via agreement with the Commission. However, stakeholders have requested clarity in legislation, so we are putting this protection on the face of the Bill. This will ensure that any initial contact with veterans goes through the MoD so that they are given the pastoral support they need.
- Remote access for witnesses These amendments will ensure that when a witness is contacted as part of an investigation under Part 3 they can do so remotely, mirroring the provision already applying to Part 4. Statutory review of effectiveness of witness protections We understand that our commitments to protect witnesses must translate into reality. To provide assurance of this, we are legislating for an independent review of the effectiveness of the witness protections and other measures, to ensure the provisions designed to help former service personnel are fulfilling the policy intent.
- No new inquests.This amendment will remove Clause 85, meaning that no new inquests can be directed following the end of the Commission.This is a complex position requiring clarification. Some 38 inquests involving 70 deaths are due to be transferred to the Legacy Commission. Onlty those which were cut off by the previous Legacy Act are due to be completed. In infornation given to the House of Lords at least 16 were halted and are due to be completed.
- Building confidence in the reforms. This amendment will ensure that the Attorney General, acting in an independent, quasi-judicial capacity, must consent to the prosecution of serious Troubles related offences.
- Prosecutorial guidance This amendment will require the Public Prosecution Service in Northern Ireland and the Crown Prosecution Service in England & Wales to work together on joint guidance on the approach to prosecutions. Prosecutorial advice to the Commission Legacy These amendments will ensure that the Commission seeks the advice of prosecutors during the course of an investigation to help inform its decision making in respect of referrals to prosecutors. This will ensure that cases are not referred to prosecutors in circumstances where the evidence is unlikely to support a successful prosecution.
- Ensuring transparency prosecutions in These amendments will require the Commission to publish a policy on the types of circumstances in which they will refer to prosecutors, in order to increase transparency.
- Legal status ‘on-the-run’ letters of Amendment to clarify that no person can or should rely on an ‘on-the-run’ letter during criminal proceedings against them.
- Ensuring an effective process for victims. Victims and Survivors Advisory Group. Although we have been clear that no former paramilitaries will be appointed to the Victims and Survivors Advisory Group, having listened to concerns, we are giving legislative effect to that commitment in order to provide absolute certainty on this point. We will require there to be veteran representation on the Victims and Survivors Advisory Group to ensure the experiences of our soldiers in Northern Ireland are reflected.
- Repeal Legacy of the Act’s immunity scheme and bar on civil cases These amendments will repeal the Legacy Act’s provisions relating to the conditional immunity scheme and the bar on civil claims. While the immunity provisions were never commenced, this will remove them from the statute book
- This amendment adds a time limit for judicial reviews against inquisitorial proceedings decisions. This will prevent challenges that would cause long delays and aligns the regime with the Inquiries Act.
- Timing disclosure information This amendment makes clear that the Legacy Commission can set a timescale by which relevant authorities must supply information. It also allows the Commission to request disclosure from the ‘Presiding Coroner, providing clarity and confidence to individuals approaching the Legacy Commission.
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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