Christopher Stanley

On Wednesday 18th March 2020, the Secretary of State for Northern Ireland published a statement on the British government’s proposal for Dealing with the Past in Northern Ireland – a new approach.

In an accompanying statement, the Northern Ireland Office stated:

The core proposals are:

• A new independent body focused on providing information to families and swift examinations of all unresolved deaths from the Conflict
• End to the cycle of reinvestigations that has failed victims and veterans for too long
• Ensuring that Northern Ireland veterans receive equal treatment to their counterparts who served overseas.

The statement seeks to establish ‘a way forward’ with information recovery (not truth) and reconciliation ‘as the overarching goal’. Throughout the statement victims and veterans are conflated. A clearly stated aim is to end ‘vexatious claims against veterans’ and ‘ensuring equal treatment of Northern Ireland veterans and those who served overseas’.

In the last 20 years, there have been a number of attempts to resolve the legacy of the conflict in Northern Ireland. These have been well-intentioned and eventually became a section of the Stormont House Agreement in 2014 which is the basis of the most recent settlement to restore the devolved administration at Stormont published as New Decade, New Approach (8 January 2020) which at paragraph 24 states:

The restoration of a power-sharing Executive at Stormont was a significant political breakthrough. The British government has now put that at risk. The new proposals have been responded to with almost universal condemnation in Ireland including by the Irish government and civil society organisations and victims groups in Northern Ireland.

The reason for this condemnation is the sudden volte face of the British government. The previous Secretary of State had a brief tenure that was judged a success in Ireland and was building bridges between politicians and communities, including by way of addressing the legacy of the conflict through the proposals agreed under the 2014 Stormont House Agreement.

The new Secretary of State has with a stroke swept aside those bridges. He carries with him the support of his colleagues and his backbenchers. From Whitehall a politician with no previous experience of the complexity of his portfolio has provoked a dangerous situation for both Belfast and Dublin which the caucus in Washington will be quick to comment upon.

Even if given only a cursory glance the proposal provokes alarm. For example, “The Government is committed to the rule of law but …” So in Northern Ireland, that narrow ground, the rule of law can be constituted as a state of exception, suspended for political expediency? For example, “the current approach is not working well for anyone, and that it erodes confidence in public institutions”. To what does this refer? Where are the examples? The under-resourced Police Ombudsman? The discredited PSNI Historical Enquiries Team?

The recent DoubleBand Films/BBC Northern Ireland/Northern Ireland Screen film Lost Lives powerfully articulated how the legacy of the conflict shapes the present and determines the future. Similarly, the powerful BBC Northern Ireland Troubles at 50 series again demonstrated the importance of the legacy of the conflict to the continued out-working of the peace – a peace which the Secretary of State should understand – is a peace in process.

The relatives of the victims and the survivors (including members of the Security Forces) do seek reconciliation but they also seek truth and justice and accountability – from the PIRA, from the INLA, from the UDA/UVF/UFF, from the British Army, from the RUC, from the Gardaí.

It is clear that the British government wants to stop the past by establishing first, a ‘swift’ examination of all ‘unresolved deaths’ (this is entirely unclear as to how swift and what form of examination) and second, by erecting a legal bar to prohibit further examination.

That would establish a narrative about the past which would be acceptable to the British government. But it would be a narrative which would erase or airbrush out of history the complexities of what actually happened during the conflict in terms of policies to confront a post-colonial counter-insurgency conflict, increasingly recognised by many in Ireland as framed through the dark prism of collusion.

The British government in London seeks to conflate confronting the legacy of the conflict in Northern Ireland with its fixation on prohibiting ‘vexatious claims against veterans’. The proposals therefore seek to salve the baying hounds on the Tory backbenches but fail to understand that these ‘vexatious claims’ – at least in relation to Northern Ireland – relate to prosecutions which have been bought by official law officers not by lawfare lawyers.

These prosecutions have been bought because the evidence against these veterans has been adduced and has been assessed as meeting the required evidential threshold.

Should a judge find that the prosecutorial decision was wrong then she will announce a judgment of not guilty.

The crimes being prosecuted are alleged to have taken place during a domestic counter-insurgency. They are not crimes of war but rather crimes in breach of criminal law which applies to all citizens, including members of the British Army even when operational.

If policies at the time had lead to investigations, arrests, charging, prosecutions and trails then the current small number of prosecutions may not have been necessary, but they were not - as the Saville Inquiry into the events in Derry on Bloody Sunday exposed.

The British government now seeks introduce a presumption against prosecution of veterans (see Veterans Bill):

It should be noted that in the context of the legacy of the conflict in Northern Ireland these new powers would usurp the jurisdiction of the Attorney General for Northern Ireland (the Advocate General for Northern Ireland is the Attorney General for England and Wales – he has only exercised power once in relation to the Conflict when he ordered a fresh inquest into the Loughgall Killings given national security concerns which are not devolved matters).

The alleged crimes of soldiers in Iraq and Afghanistan occurred after the introduction of the Human Rights Act 1998. They occurred overseas where the jurisdiction of the European Convention on Human Rights does not run (unless within the temporary sovereign territory of a military base).

Despite the conclusions of the Al-Sweady Inquiry and the exposure of ‘lawfare’, the conclusions of the Baha Mousa Inquiry resulted in a damning indictment of members of the British Army whilst operating in Basra, Iraq. A line can be drawn in the sand between Belfast to Basra but in terms of the out-workings of two legacies and two pasts the approaches must be different.

The peace in Northern Ireland is secured upon the Belfast/Good Friday Agreement 1998 and subsequent accords and treaties. The 1998 Agreement is an internationally recognised peace agreement and in its letter and spirit has human rights at it core – its is mentioned 21 times. For example:

What the British government now proposes in terms of addressing the legacy of the conflict offends the ECHR in terms of the positive investigatory procedural obligations demanded when either Article 2 (the right to life) or Article 3 (the prohibition against torture) have been breached or violated.

The jurisprudence of the ECHR as articulated by the European Court of Human Rights in Strasbourg and by the Courts of Appeal (in Belfast and London) and the UK Supreme Court articulates what a human rights compliant investigation looks like, be it by a state agency, the coronial process or an independent inquiry – in no way could the government’s proposals be described as human rights compliant, not least because of the intention to introduce a statute of limitations by way of a bar to future investigations following a ‘swift’ examination.

Whilst using the language of truth and reconciliation – specifically information recovery – the new approach avoids truth recovery – or indeed the right to truth which affixes to the jurisprudence of Article 2 and 3. The legal bar will therefore not only be a bar to future investigations (human rights compliant or not) but by default a bar to truth recovery which would be a bar to justice and accountability.

The British state (including government) has always maintained that national security is a bar to truth recovery in relation to Northern Ireland. Or as former Prime Minister David Cameron reportedly said to Geraldine Finucane, the widow of assassinated Belfast solicitor, Patrick Finucane: “It is true that the previous administration could not deliver a public inquiry and neither can we. There are people in buildings all around here who won’t let it happen.”

How can the demands of national security be reconciled with the need to confront the legacy of the conflict in Northern Ireland? National security is not defined but exists to protect the rule of law which is core to protecting the principles of our democratic society which in turn demands truth and accountability and transparency from those who govern us, now and in the past – for Ireland, the British government’s proposals would bar access to truth and accountability for victims and survivors and establish what a previous Secretary of State called a pernicious counter-narrative.

The present proposals risks division at Stormont, an undermining of the peace agreement, a reversal of the 2014 Stormont House Agreement regarding the legacy of the past, and a breach of the UK’s obligations under the ECHR. Let alone destroying the expectations of relatives of victims and survivors across the communities of the Island of Ireland.

• Christopher Stanley is a litigation consultant at KRW LAW LLP.