A London – Dublin framework of consultation lasting a year has so far failed to land agreement on the Troubles Bill

Scenes at the Ballymurphy Inquest  

Distracted by the political antics over Drumcree – not to mention the ill fortunes of Trump – you may not have noticed that the new Troubles Bill is in trouble itself.

Promoted as the final solution for dealing with the past after at least three attempts,  the UK government  still responded to  intense cross party  pressure at Westminster to provide added protection for former soldiers under investigation by requiring the Attorney General  of England and Wales to sign off whatever few prosecutions that might be recommended  and removing the main decision from the Northern Ireland officials, the director of public prosecutions and the NI AG – as if they might have been a bit too keen to move against old soldiers (not that I’ve noticed) and  too independent.

The first shot across the government’s bows came from a former DPP, Barra McGrory, last week, indeed a lawyer with a  notable personal legacy in republican cases,  therefore a daring independent appointment perhaps, but winning an impeccable reputation as a prosecutor nonetheless.

Barra McGrory KC SC said had the proposed arrangement been in place when he was first appointed, he would not have applied for the job.

“If the director of public prosecutions can’t be trusted to independently take decisions on troubles-related cases. Well, then, people are going to start questioning whether or not the DPP can be trusted to take decisions locally, and that is not healthy,”

McGrory was appointed DPP in 2011 and held the office for six years. He took up the role after the criminal justice reforms in 2010 which ensured the office for the first time was completely independent. The reforms were a key part of the Good Friday Agreement.

McGrory warned the government proposal would now “wipe away that independence in relation to Troubles-related cases”.

“It has significantly undermined that very carefully crafted suite of reforms that were introduced back in the early 2000s. So it’s a backward step

He also warned against a “two-tier” justice system with Troubles-related prosecutions being decided by the Attorney General of England and Wales with all other cases being considered by the local DPP.

“The public will say we are expected to have belief and trust in our DPP as someone who can take his decisions independently and impartially and on the evidence.

“But when it comes to this class of suspect, we’re told that our DPP isn’t good enough. So what does that say?”

He added: “We will have a hierarchy of victim, and that is not healthy.”

The Justice Committee of the Oireachtas  has gone several stages further. They  have rejected  main elements of the Troubles Bill root and branch, claiming that it violates the principles of the GFA and the terms of the joint British Irish Framework set up last year for considering the final shape of legacy legislation. At the core of their objections lies the new role for the English Attorney General, who unlike the AGs in both parts of Ireland is also a minister in the government. It is always insisted that the English AG  approves prosecutions completely independently of government concerns, but this doesn’t wash with the critics .

Instead the  Irish lawmakers wish to reinstate and independent and adequately resourced Historical Investigations Unit to investigate unresolved Troubles-related cases, particularly those involving allegations of State involvement or collusion.  The HIU was abandoned  by the  Conservatives’ Legacy bill but not restored by Labour’s Troubles Bill

The Dublin committee also  demands :

Greater judicial oversight of decisions to withhold information, with decisions made by an independent judge rather than a Minister.
• Stronger statutory obligations on State bodies and current and former office holders to cooperate with legacy investigations and information-recovery processes.

• Meaningful participation rights for victims and families, including timely access to information, opportunities to provide evidence and independent review or appeal mechanisms where information is withheld.
  • Clearer statutory safeguards governing national security restrictions, ensuring they cannot be used to conceal wrongdoing or State involvement in serious human rights violations

 MI5  would just love all that.

And if  the British government doesn’t comply …

The Committee also recommends that the Government maintain, and if necessary, actively pursue, its inter-State case against the British Government before the European Court of Human Rights concerning the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, unless the concerns identified in the report have been comprehensively addressed.

And the Dublin government’s  initial response to  the Oireachtas’s Committee’s virtual demolition of the Troubles Bill ? Cautious endorsement

Foreign Affairs minister Helen McEntee said: “The framework that was agreed last September is the framework that must be applied to their legislation and to our legislation.

“Anything that would change that, anything that would shift that balance – but in particular anything that would cause concern for victims, for survivors, and for families most importantly – that always has to be taken into consideration.

“I’m not going to go any further than to say we are engaged continuously with the UK Government, engaged with the Secretary of State, and I am very clear that there will be no proposals and no amendments that shift that balance, or indeed that victims or survivors or their families feeling that is the case either.”

Not quite the last word. Barra McGrory  said earlier that he envisaged a system with  no prosecutions and therefore no need for an all singing all dancing Historical Investigations  Unit, putting trust instead on the local legal systems’ extensive, long  experience of handling cases. He and the legal establishment  recommended  allowing the civil cases to reach decisions where the burden of proof is lower. But even this hasn’t been favoured by Labour.

The gap between Dublin and London  seems pretty wide. To narrow it and secure Dublin’s cooperation with the Legacy Commission, the devil will still be in the detail.