Reconciliation or amnesia? NI Legacy Bill
The government's attempt to "draw a line" under the Troubles faces opposition from almost every quarter, but is likely still to become law next week
The government has achieved something which almost no-one has managed to do in Northern Ireland at least since the Troubles began in the late 1960s: it has united the political parties across the spectrum, the Irish government and even the administration in Washington. Unfortunately, it has united them in opposition to the legislation it is passing on the legacy of the conflict in Northern Ireland.
The Northern Ireland Troubles (Legacy and Reconciliation) Bill was introduced to Parliament in May 2022. Essentially it seeks to draw a line under offences committed during the Troubles, grant conditional immunity from prosecution for any such offences and create an Independent Commission for Reconciliation and Information Recovery (ICRIR) which would examine deaths and other harmful conduct during that time and publish its findings. Those who co-operate with the ICRIR will be granted immunity from prosecution for the actions disclosed to the commission. The bill also prevents prosecution for Troubles-related offences which do not involve, or are not connected to offences involving, death or serious injury; precludes future civil claims relating to those offences and terminates any such claims currently underway; prevents any future inquests and brings to an end those still at an early stage; and finally will initiate a “programme of memorialisation”.
In short, then, the bill will declare a kind of “Year Zero”. Introducing the bill at Second Reading, the then-secretary of state for Northern Ireland, Brandon Lewis, explained to the Commons that successive governments had tried to bring about reconciliation but had failed, and the status quo was untenable. He noted that resolving outstanding cases became more difficult with each passing year, and that most families affected were receiving neither justice nor even information. Instead, the bill:
focuses on effective and timely information recovery, and the answers and accountability that come with it, for both families and survivors, as well as aiding reconciliation and helping society move forward.
In particular, Lewis stated that the bill’s provisions would provide reassurance and certainty for veterans of the security services, both the armed forces and the Royal Ulster Constabulary. He admitted that it had not been possible to secure consensus on the bill—something of an understatement, as all parties opposed it—and so “it is sometimes for us in Government to take those difficult decisions to find a way forward that can deliver a better outcome for people”.
The truth is that primary target of the bill has been those veterans. There have been high-profile campaigns supported by Conservative Members of Parliament, especially Mark Francois, Johnny Mercer, Sir Iain Duncan Smith and Sir Julian Lewis for the relief of veterans, many now elderly, who have the spectre of prosecutions for their actions while on active service hanging over them. (In fairness, Labour MP Dan Jarvis, himself a veteran who served in Operation BANNER, the British Army’s deployment to Northern Ireland between 1969 and 2007, has also spoken on behalf of veterans.) At the forefront of many minds is the current prosecution of “Soldier F”, a former member of 1st Battalion, The Parachute Regiment, for the murder of two civilians, James Wray and William McKinney, in Londonderry on 30 January 1972, Bloody Sunday.
“Soldier F”, who was named under parliamentary privilege by Colum Eastwood, leader of the nationalist SDLP and MP for Foyle (which contains the city of Londonderry but is named to avoid the controversial usage of its name), is the only person to be prosecuted for the deaths of 14 civilians on Bloody Sunday. The Public Prosecution Service in Northern Ireland discontinued his prosecution in July 2021, because some contemporaneous evidence was deemed inadmissible, but this decision was overturned by the High Court in Belfast in March 2022 and the PPS ordered to resume the prosecution. The case is ongoing, but would be terminated by the passage of the bill.
The concept of the Independent Commission for Reconciliation and Information Recovery is loosely modelled on the South African Truth and Reconciliation Commission set up in 1996 after the end of the apartheid régime. Authorised by President Nelson Mandela and chaired by Archbishop Desmond Tutu, it was intended primary to bear witness to and record human rights abuses by the South African government, as well as offering reparation and rehabilitation to the victims. This system of restorative rather than retributive justice would, it was hoped, engender a sense of closure and forgiveness on the road to national unity, rather than exacerbating existing divisions by seeking punishment and revenge. Opinion remains divided on the extent of its success and its effectiveness among different ethnic groups.
The proposed system is not being introduced into a vacuum. The Northern Ireland (Sentences) Act 1998 meant that no-one guilty of a Troubles-related offence would serve a term of imprisonment longer than than two years. In addition, after the Belfast Agreement in 1998, then prime minister Sir Tony Blair had reached a secret agreement with Sinn Féin that the 187 or so members of the Provisional IRA wanted for offences committed between 1969 and 1998 (so-called “on-the-runs” or OTRs) would not be prosecuted, and were issued with “letters of assurance” to this effect from 2000 onward. This process was not disclosed to the Unionist parties, to the SDLP or, at first, to the Irish government; it is also still unclear whether it was lawful. The existence of these letters did not emerge until 2014.
Opposition to the bill mainly stems from the fact that families of victims do not feel that the arrangements for the ICRIR are sufficiently robust and stringent to satisfy a sense of closure and justice while also bringing prosecutions and potential prosecutions to an end.
On Wednesday, the House of Commons considered the bill with a message from the House of Lords which proposed a number of amendments, and sent it back with disagreements to those changes. The House of Lords will look at the bill again on Tuesday next week, and is likely to pass it in its current form. There have been two changes of secretary of state since the bill was introduced, Shailesh Vara holding the office from July to September 2022 after which Chris Heaton-Harris was appointed (he is the eighth secretary of state since 2010). Heaton-Harris reminded the House of Commons this week that:
current mechanisms for addressing legacy matters work for only a very small number of people, rather than the overwhelming majority, and established criminal justice processes are increasingly unlikely to deliver outcomes that people desire, especially in respect of prosecutions.
He described a system which had worked in a satisfactory way for very few bereaved relatives, and was becoming less effective over time. The government therefore remained convinced that the provisions of the bill were the best way to proceed, however flawed:
because we hope that we can, in good time, at least get some information recovered for those families that ask for it, and also through other elements of the Bill that are not the subject of this package of amendments. If someone misleads the Independent Commission for Reconciliation and Information Recovery, there are criminal processes involving perjury and a whole host of criminal investigations that can take place.
It remains an enormous weakness of the bill, however, that it has attracted so little support in Northern Ireland. As the secretary of state put it, “I understand that lots of families do not want this Bill, but the question then is: if not this Bill, then what?”
Yesterday, victims campaigner Raymond McCord, whose son Raymond Jr was killed by Loyalist paramilitaries in 1997, lodged an application with the High Court in Belfast for a judicial review of the bill, on the grounds that it breaches his human rights under Article 2 of the European Convention on Human Rights, which protects the absolute right to life.
The Irish government remains opposed to the bill, which the taoiseach Leo Varadkar described as “not victim-centred and not human-rights proofed”. It is taking legal advice on its own potential challenge, but Varadkar has made the principled position clear:
We think this is a mistake, this is the wrong way to go about dealing with legacy issues in Northern Ireland… The Attorney General’s preparing some legal advice on what the strength would be of us taking a case to the European Court on Human Rights, essentially saying that this Bill, this act is not compliant with the European Convention on Human Rights, of which United Kingdom is a signatory. I will make a decision on whether or not we pursue a case in the coming weeks.
Clearly if the government is taken to the European Court of Human Rights over the bill, this will intensify arguments within the Conservative Party over the UK’s adherence to the convention.
The bill is likely to receive Royal Assent next week, so any legal challenges will considered ex post facto. I have a degree of sympathy with Chris Heaton-Harris and his fellow ministers at the Northern Ireland Office, as negotiating the past in Northern Ireland is often more difficult even than negotiating the present. (When Willie Whitelaw was appointed as the first Northern Ireland secretary in 1972, he told journalists “I always think that it is entirely wrong to prejudge the past”.) To satisfy all parties is nigh-on impossible; nevertheless, one cannot ignore the fact that the government has satisfied none of the parties.
The idea of the bill feels instinctively wrong. Albeit from a distance, I grew up with the Troubles as a rumbling background: a 16-year-old Catholic boy was shot dead by the Army in Belfast the day before I was born, and six more people would be killed before the end of that calendar year. I was 16 when the Provisional IRA declared its ceasefire in 1994, 18 when they detonated a huge bomb in London’s Docklands in 1996 and 20 when the Belfast Agreement was signed in April 1998. To say now that anyone who has not yet been punished for their involvement in the Troubles can be granted immunity from prosecution, that if they will tell what they claim to know and remember to a commission then they will be on their way, feels shoddy and shameful, an insult to all 3,500 of those killed during the Troubles. It seems, in some way, a victory for the terrorists from all sides.
Heaton-Harris’s point has some force: if not this, then what? I don’t have a simple answer. It may surprise some readers, but I am not especially sympathetic to the plight of veterans of the security forces who fear they may face prosecution. Of course they were doing their job in Northern Ireland, and I would not judge them harshly in operational terms. But soldiers always have rules of engagement, and if those were not adhered to, then consequences must flow. It is part of the moral justification for the activities of the security forces that they must be held to an even higher standard than civilians, including terrorists. As for Soldier F, it is now, I think, settled opinion that the Parachute Regiment behaved extremely poorly on Bloody Sunday, that paratroopers hugely overreacted to the circumstances and may indeed have gone to the Bogside that day looking for a confrontation. The report of the long inquiry into the events of that day demonstrated the failings of the security forces, from Major General Robert Ford, Commander Land Forces, Northern Ireland, downwards. And, for all the continuing accusations, including of collusion with Loyalist paramilitaries, I am confident enough in the Army and the RUC (GC) to stand their record against that of terrorist groups.
However, just as Heaton-Harris has a point in saying “if not this, what?”, there is also force behind the argument of, given it is opposed by all parties in Northern Ireland, “not this”. It is only half an answer, but it is important. The bill will, I fully expect, pass into law next week. Whether the case in the High Court will proceed, or whether the Irish government will make an application to the ECHR, I don’t know. If they do, if the act (as it by then will be) is checked in any way by legal proceedings, I would strongly urge the government—whether this or some successor administration—to use that as an opportunity to think again, to reflect, and to see if there is any scope, any small patch of consensus, on which a better system might possibly be built. I don’t see this legislation making the situation in Northern Ireland any better, and that, surely, must be the final test.