If Downing Street wanted to bury the announcement that there will be no inquiry for the foreseeable future into the 1989 murder of Belfast solicitor Pat Finucane, they could hardly have chosen a better moment. Secretary of State (SoS) Brandon Lewis made his statement to the House of Commons late in the afternoon of 30 November, just before the controversial House of Commons vote on the three Covid-19 tiers system proposed to bring England out of its second lockdown. John Finucane MP tweeted earlier that day that the family’s expected meeting with the SoS had been delayed from 12pm until 4pm – ensuring that it was unlikely to feature in the news agenda that evening, if at all.

The announcement was greeted with predictable condemnation. John Finucane called the decision “insulting”; in a statement the Finucane family said it had made a mockery of an earlier decision by the UK Supreme Court. Instead, the Secretary of State had made a “farcical proposal” to leave the case in the hands of the local Police Ombudsman and the PSNI. “They have again shown that they have no intention of admitting their role in the conflict here,” the family said.

From Washington, Republican Congressmen Chris Smith and Democrat Richard Neal released a statement that the British government’s failure to establish an inquiry “is inconsistent, unrealistic and dismissive of the extraordinary human rights implications of his murder – a case where the government has acknowledged collusion but will not accept responsibility.”

Mr Lewis said that he was not taking the possibility of a public inquiry off the table at this point, but that it was necessary to “decide if a further review is merited given all the previous investigations.” The significance of a review into the Finucane murder is of course that it has been accepted that it took place as a result of collusion between the paramilitary Ulster Defence Association (UDA), which was still a legal organisation at the time, and the British Army’s Force Research Unit, a section of the British Army’s Intelligence Corps. 

New Decade, New Approach?

The Finucane decision needs to be seen in the context of a string of recent developments in the issues regarding resolution of the “past” in Northern Ireland. Media attention, particularly in Britain, to Troubles-related issues is poor at the best of times but since March any issue which is not Covid-related has struggled for attention.

In the Stormont House Agreement of 2014, the Government proposed four new bodies to take forward the outstanding legacy issues:

• Historical Investigations Unit (HIU) to take forward outstanding investigations into Troubles-related deaths;

• Independent Commission on Information Retrieval (ICIR) to enable family members to seek and privately receive information about the Troubles-related deaths of their relatives;

• Independent Oral History Archive (OHA) to enable people from all backgrounds to share experiences and narratives related to the Troubles; and

• An Implementation and Reconciliation Group (IRG) to promote reconciliation and anti-sectarianism, and to review and assess the implementation of the other legacy institutions proposed.

Between May and October 2018, and despite the collapse of the Assembly in January 2017, a public consultation on these proposals attracted 17,000 responses.

In July 2019 Julian Smith MP was appointed Secretary of State, and during his short time in office was generally recognised to be the strongest and most effective SoS for many years. He was instrumental in delivering the restoration of the Assembly in January 2020. Following the December 2019 election the Conservative government stated in the Queen’s Speech to parliament that to “deal with NI legacy issues we will seek the prompt implementation of the Stormont House Agreement in order to provide both reconciliation for victims and greater certainty for military veterans… In parallel with the Stormont House Agreement institutions we will tackle the inappropriate application of the Human Rights Act to issues that occurred before it came into force.”

In ‘New Decade, New Approach’ (NDNA) in January of this year the British Government committed to publishing and introducing legislation to implement this commitment within 100 days. 

On 13 February 2020 Julian Smith was the first minister to be sacked by PM Boris Johnson in his post-election reshuffle. Commentators were divided on whether his ousting was because of Johnson’s pro-Brexit stance or the allegation that the PM was not aware of and did not support the commitment made in NDNA. With a both-and lens it is of course possible that Smith’s fate was sealed for both reasons. 

Days later, Smith argued in a frank and good-natured article in The Spectator that “a PM does not sign off a key government deal without reading it first.” It is also possible to believe that the PM was fully aware of and went along with NDNA in order to see power-sharing restored at Stormont but had no intention of delivering on the commitment. On 18 March, just as the UK was plunging into its first lockdown, Brandon Lewis, the new SoS, issued a two page Written Ministerial Statement (WMS) on new proposals to address the legacy. It was released on the same day as the Overseas Operations (Service Personnel and Veterans) Bill, which aimed to prevent “prosecution of current or former personnel for alleged offences committed in the course of duty more than five years ago” was introduced in the Commons.

Despite that this Bill only addressed military operations outside the UK, the WMS began: “Today the government announced legislation to provide greater certainty for service personnel and veterans who served in armed conflicts overseas. Alongside this, we are setting out how we propose to address the legacy of the past in Northern Ireland in a way that focuses on reconciliation, delivers for victims, and ends the cycle of reinvestigations into the Troubles…”.

The WMS went on to propose that there will be a single independent body to oversee both the investigative and information recovery aspects of the legacy system and “provide every family with a report with information concerning the death of their loved one.” It continues: “Only cases in which there is a realistic prospect of a prosecution as a result of compelling new evidence would proceed to a full police investigation and, if necessary, prosecution.” Other cases “would be closed and no further investigations or prosecutions would be possible.” The government again committed to introducing legislation.

On 29 April, the Northern Ireland Affairs Committee (NIAC), which includes MPs from Conservative, Labour, DUP, Alliance and SDLP parties, launched an inquiry into the government’s new proposals. The Committee released an Interim Report on 26 October. 

The Committee explains that this is necessarily an Interim Report because neither the British nor the Irish governments submitted formal responses to the inquiry. Further, the Secretary of State postponed an appearance before the Committee planned for 16 September because the Government was “at an important stage of policy consideration, including sensitive engagement with key stakeholders” and would not therefore be able “to provide answers with the clarity or openness that the Committee would expect”. This suggests that the Government is developing new policy on legacy arrangements for Northern Ireland without consultation and collaboration with the NIAC, whose very purpose is to advise in this area.

The 35-page report makes for enlightening reading and includes the following points:

  • The WMS proposal to move to a “single, independent body to oversee legacy arrangements” “represents a unilateral and unhelpful departure from the Stormont House Agreement.”
  • The WMS does not refer to the appropriate role and responsibilities of the Irish Government, necessary due to the number of cross border incidents and number of cases involving cross border criminality.
  • Insistence that the Overseas Operations (Service Personnel and Veterans) Bill must be decoupled from Northern Ireland legacy issues.
  • Neither Victims Commissioner Judith Thompson, who was told that her contract would not be renewed in July 2020, nor Sandra Peake, CEO of WAVE Trauma Centre, received warning of the WMS: The report stated: “We are dismayed by the lack of consultation and engagement with representative groups by the NIO on its new proposals both before and after publication of the WMS in March 2020.”
  • There were different views among those consulted by the NIAC on whether consolidating investigatory and information recovery aspects would be simpler or might, according to the NIHRC, lead to a loss of focus on the four areas identified in the Stormont House Agreement.
  • Acknowledgement that the likelihood of prosecutions at this stage is slim;
  • At the same time many witnesses stated that “any process should actively seek new, relevant information to enable the identification of possible investigative opportunities or new evidence.”

There was concern about the Government’s plans to permanently close cases not reaching the threshold for police investigation: “The permanent closure of a case in which serious crime has been committed raises profound legal, ethical and human rights issues. We expect the Government to abide by its obligations under the European Convention on Human Rights (ECHR) to ensure that investigations conducted by the new legacy body are Article 2 (Right to Life) compliant.”

It went on to call on the government to set out “with some urgency… how its proposed information recovery mechanism will operate,” adding that, “Transparency and access to relevant information are key and the positive engagement of the relevant actors and agencies would be required.

The report includes a chapter on Operation Kenova, which was led by Jon Boutcher, former Chief Constable of the Bedfordshire police. The unit was an external team, funded by PSNI, which initially had responsibility for investigating the activities of British Army agent “Stakeknife” but has expanded to examine a total of 236 killings.

Operation Kenova has a number of mechanisms to ensure ECHR compliance, including an independent steering group and a governance board. The then Victims Commissioner, Judith Thompson, told the inquiry: “What we see in Operation Kenova is the application of good-quality, modern victim engagement, victim liaison and family liaison, and good investigation into some of the most painful cases that emerged from the conflict.” 

In his evidence, Mr Boutcher said that as a result of the trust and confidence that had been built with families, direct evidence including identities of suspects, had been provided. In his experience, “families want to be listened to, acknowledged and told the truth of what happened.” There are lessons to be learned from Operation Kenova, the report concludes.

Finally, the report notes that the position of Victims and Survivors Commissioner has been vacant since 31 August and should be filled as soon as possible.

Kicking legacy Issues Into the long grass, again

The sequence of events since January, when the Northern Ireland Assembly was restored, and culminating in this week’s announcement of the decision not to pursue a long-awaited inquiry into the Finucane murder suggests a number of worrying possibilities.

It was certainly always the case that the four-strand approach proposed in the Stormont House Agreement would be over-complex and hard to implement. If anyone could have helped to design and deliver a workable solution, as promised in NDNA, it was Secretary of State Julian Smith.

Instead, in the WMS, which departs fundamentally from the Stormont House Agreement, Brandon Lewis managed simultaneously to tick the “announcement of legislation within 100 days” box at the same time as kicking legacy issues into the long grass – with forgiveness asked for the mixed metaphors.

It appears that the Government is proceeding to design new proposals on legacy without consulting any of the key players: the Irish Government, the Northern Ireland Affairs Committee, the Commission for Victims and Survivors, and a range of other stakeholders. The lack of engagement by the Irish Government raises questions about the current state of the relationship between the two governments and whether the Irish Government felt slighted by the lack of consultation prior to the WMS, in addition to its strongly worded regret at the departure of Julian Smith.

Judith Thomson’s departure should also ring alarm bells. Speculation for the reason for the decision not to renew her contract is inconclusive but includes the possibility that it was due to her continued acceptance of the 2006 Victims and Survivors Order definition of a victim as “someone who is or has been physically or psychologically injured as a result of or in consequence of a conflict-related incident” and their carers and/or those bereaved by the loss of someone killed. So we find an apparently endless cycle of failed or obstructed proposals and attempts to break through the impasse on the legacy of the past.

Encapsulating the “frozenness” of the peace process

Meanwhile, in a separate case, the families of the victims of the Ballymurphy Massacre in August 1971, in which ten civilians were killed by the Army, are awaiting the outcome of the inquest. Presiding Coroner Justice Keegan has heard final oral submissions from all legal representatives but there are still a few outstanding military witnesses to be heard. They had made applications for excusal from giving evidence on medical grounds which the coroner was due to rule on; then came Covid.

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”. I have argued at length elsewhere that there were three protagonists in the Troubles, not two: republicans, loyalists and British state forces.

The British state, however, has a particular responsibility for addressing its role as an active participant. As the UN Rapporteur states: “more work needs to be done to resolve the challenging legacy of [the] past… It is critical to direct attention to instruments that may capture the more “structural” dimension of violations and abuses, so that victims and society receive answers on whether the violations were part of a pattern reflecting a policy under the responsibility of institutions with identifiable chains of command… The structural and systemic dimensions of violence and rights violations and abuses should be examined. A comprehensive understanding of the past requires instruments that do not treat it merely as a series of unconnected events.” 

The continuing failure of the British Government to address the legacy of unresolved cases involving both the Army and already proven collusion with loyalist terrorism in the conflict is a major factor in the “frozenness” of the ongoing peace process.

The lack of external mechanisms of accountability contribute to the feeling of going around in circles on outstanding issues – encapsulated in the Finucane case. Perhaps there is one bright spot ahead. In the US, the incoming Biden administration is likely to take its role as co-guarantor of the Good Friday Agreement seriously and to display a forensic interest in Northern Ireland.