The British Government is not viewed as a neutral arbiter regarding the Troubles and this “imposes serious constraints on the way forward that are not always sufficiently recognized.”

UN Rapporteur in 2017 report to Human Rights Council

Whether by accident or design, and my money is on the latter, Secretary of State Brandon Lewis chose the week following the Twelfth July bank holiday, when many in Northern Ireland are on holiday, to release the Government’s proposals for new legislation to deal with the legacy of the past in Northern Ireland.

There is an almost universal negative reaction to the proposals, which Irish Minister for Foreign Affairs Simon Coveney has downplayed as a “position paper.” The five main parties in Northern Ireland and the Irish Government expressed their “robust and frank” disagreement with the proposals in a meeting with Coveney and the Secretary of State held on Friday 16 July. 

In his statement, Coveney said “there will be a strong onus on the UK Government to explain how the proposals could fully comply with their ECHR (European Convention of Human Rights) and other legal and human rights obligations.” There is no mention of human rights in the proposal apart from a brief statement of intention to comply in an appendix. Perhaps Simon Coveney was surprised by the publication of the Government paper, which appears to lay out its position independently of any consultation process. It certainly exposes the thinking and assumptions of the Tory Government to unresolved issues in the Northern Ireland peace process.

In the conclusion to the 32-page, poorly written proposal, the Government notes (n.42) that “we are committed to working collaboratively with the Irish Government, NI parties and the victims’ sector to develop these proposals.” That all these stakeholders, rarely united over anything, immediately and unequivocally rejected the ideas therein – for an amnesty for all former soldiers and paramilitaries on both sides for unresolved killings prior to the Good Friday Agreement of 1998, an end to inquests and civil actions, and the setting up of a new Information Recovery Body and Oral History and Memorialisation Process – suggests that the Government has scant understanding of collaborative working. 

Even the Police Federation of Northern Ireland said that “Drawing a line in the sand will leave many people feeling abandoned and ignored.” The unity was short lived, however, as by Saturday Doug Beattie, the leader of the UUP, and Naomi Long, leader of the Alliance Party, had both pulled out of a regular party leaders’ meeting due to be chaired on Monday by Mary Lou McDonald, leader of Sinn Féin, because she had added legacy issues to the usual agenda. 

Failure to engage

During 2020 the Westminster Northern Ireland Affairs Committee (NIAC) led a wide-ranging consultation process on legacy issues. In my article for Northern Slant last December on the Government decision against holding an enquiry into the 1989 murder of solicitor Pat Finucane I noted that the Secretary of State was not engaging with the NIAC in its consultations on legacy issues and suggested that the Government was bypassing the NIAC, “whose very purpose is to advise in this area.” In my article on the Ballymurphy Inquest report (May 2021) I noticed that the Government appeared to be signalling an end to legacy inquests. 

The logic of the proposal is that criminal prosecutions are unlikely succeed at this point and therefore they must end. If criminal proceedings are to be halted, alternative routes including inquests and civil proceedings must also be blocked. In addition, “the PSNI and Police Ombudsman would be statutorily barred from investigating Troubles-related incidents.”  There are 1000 civil cases currently in train against the Ministry of Defence, the Northern Ireland Office, and other state agencies. Forty-six legacy inquests relating to 82 deaths are outstanding and form part of the Lord Chief Justice’s Five Year Plan. 

To date, findings have been delivered into the death of Patrick McElhone (and, separately, the Ballymurphy cases). Hearings in the Neil McConville and Kathleen Thompson inquests have concluded and findings are awaited. Four other inquests are listed between August and November 2021 (Thomas Friel, Thomas Mills, Leo Norney and Stephen Geddis). According to Coroner and now Lady Chief Justice Keegan’s office, “the Coroners will continue to proceed with all legacy inquests until the Government’s proposals are clarified and legislation enacted.”

If all such routes are blocked, then, the proposals argue that perpetrators and victims on all sides will willingly share information and stories and that this will amount to a “truth and reconciliation process.”

A flawed approach

The flaws with the Government proposals are not primarily of content, as some of the ideas are not new and some of the difficulties are generally acknowledged. The problems are of feasibility, motivation, integrity and process. They will be extensively exposed in the months ahead. Simon Coveney and the Irish Government, and others, clearly believe that this legislation cannot and will not be enacted as proposed – it will be rejected by both the Irish Government and the Stormont Assembly.

First and foremost is the perennial failure of the British Government to acknowledge the role of the British state in the Troubles and in the failures to pursue justice for innocent victims. As the UN Special Rapporteur acknowledged in the 2017 report to the UN Human Rights Council, the British Government is not viewed as a neutral arbiter regarding the Troubles and this “imposes serious constraints on the way forward that are not always sufficiently recognized.”

The proposals do not acknowledge what is widely known to be the Government’s primary motivation: the pressure from Tory backbenchers and the tabloids to protect army veterans from prosecution. There are no significant Tory votes in Northern Ireland and the DUP squandered its moment in the sun. But the proposals claim to offer a process that will focus on “information recovery, mediation and reconciliation” and to allow as many families as possible to obtain answers about the past.

The document drips with dismissiveness, disingenuousness and cynicism – typical unfortunately of this Government’s approach to all issues, Covid, Brexit, you name it. The proposals suggest (n.10) the way forward is through “societal reconciliation through acknowledgement of wrongs – on all sides.” The use of the phrase “all sides” rather than “both sides” does show that the Government is being forced to recognise that there were more than two “sides” in the conflict. But if so, the British Government should be stepping forward first to acknowledge its responsibility for continual culpability of its state forces in a significant number of unjustified civilian deaths in the Troubles and, more particularly, for the deaths that occurred as a result of the collusion between state and loyalist paramilitary forces. As the conclusions of the UN Rapporteur suggest, it is highly unlikely that the British Government can credibly lead any “truth and reconciliation” process going forward. An independent international commission of some kind would be required.

The naivete of quoting the South African Truth and Reconciliation process is breathtaking. It is not possible to transpose a process from on socio-historical context to another. In South Africa, it was the ANC, the opposition movement, representing the oppressed majority, committed to non-violence and with a moral titan as its leader, Nelson Mandela, that took over power from the apartheid regime. Equivalence to Northern Ireland, none.

Finally, (n.41) the Government gets around to saying that its approach is “important to provide certainty for the vast majority of former soldiers and police officers who put their lives on the line to uphold democracy and the rule of law while acting within the law themselves, and who now just want to live out their retirement without the fear of unfair investigations.” But it is not the actions of this vast majority of soldiers who acted within the constraints of their discipline that is at issue. It is the behaviour of a renegade minority.

The proposal concludes by saying (n.43) that the pioneering approach of the Good Friday Agreement was “only achieved because of the inclusion of reconciliation measures…” Absolute twaddle. The GFA was pioneering because of the commitment to a collaborative listening process by all the parties (other than the DUP) then involved, facilitated over a period of time by a remarkable mediator of international standing. The GFA was not a final destination but a process, one which required ongoing attention, evaluation, adjustment over the years. That attention has been sorely lacking, along with the calibre of leadership required to take it forward.

Facing reality

The Government is kidding itself, and it is almost possible to see Brandon Lewis and Boris Johnson giggling behind their cupped hands like schoolboys. Does it really believe all parties will engage equally in sharing information about unresolved deaths? That the soldiers who have gone to such lengths – just read the Ballymurphy Inquest report – to avoid accounting for their actions will suddenly start to own up to their actions? That Gerry Adams will step forward to finally acknowledge his widely perceived role in the IRA? 

The Government is in La La Land if it believes it can guarantee that individuals’ safety would not be at risk from the proposed information sharing. The biggest and perennial problem with this proposal is that no-one trusts the honourable intentions of the Government that has written it. If Prime Minister Boris Johnson had kept Julian Smith on in his Northern Ireland position, according to many the best Secretary of State the North ever had, it might have had a better chance. Smith understood that collaborative working depended on building rapport across the political spectrum in Northern Ireland.

On Tuesday, MLAs are recalled to the Assembly for an emergency session – perhaps, warmed by the heatwave, they can rediscover a shared position on legacy, even insist on sticking to and following through on the agreed principles in the Stormont House Agreement. Perhaps. My instinct is that reconciliation is not a goal of the legacy process but a precondition. That until there is a commitment to stop the “whataboutery,” until politicians on all sides – including and beginning with Westminster, driven by the example of their leaders – start to truly empathise with the suffering caused to the victims on the other sides, and take responsibility for the actions of their own constituencies, progress on legacy will continue to be the Holy Grail of the conflict.

More on Northern Slant: