British legislation in the North is not always deceptive, oppressive or persecuting – it can be made better

Despite what Sinn Fein and other ‘advanced’ nationalists would have us believe, British government policy in Northern Ireland (and towards Ireland) is not always motivated by the wish to deceive and oppress and persecute. One benign effect of the peace process period (from the mid-1980s to 2016) was that this was increasingly recognised by senior Irish government officials charged with building relationships of mutual trust with London. Since Brexit those levels of trust have nose-dived, not helped by the fact that the government in London is currently headed by a prime minister for whom lying and deception often seem to be second nature.

However, those of us who are not republicans or ‘advanced’ nationalists must continue to believe that the British government is still capable of listening to Irish people of goodwill and acting in good faith to amend its legislation in response. I believe they have listened to Irish people, north and south, in formulating their latest effort to deal with the toxic issue of the legacy of the Northern conflict: the Northern Ireland Troubles (Legacy and Reconciliation) Bill. What they have produced, in the words of my ex-colleague and friend Padraig Yeates, distinguished former journalist and historian, is “a substantial piece of legislation” which “deserves serious examination.”1 [Yeates now heads a small cross-border group of former politicians, journalists, academics, trade unionists, peace activists and former combatants (of which I am a member) who are campaigning for a “Truth Recovery Process” in the North along the lines of the South African Truth and Reconciliation Commission, which emphasised uncovering information from both victims and perpetrators about past human rights violations rather than prosecuting individuals for past crimes, and introduced the concept of ‘conditional amnesty’ for those who cooperated with it.]

You would not think the new legislation was substantial and serious from the furious reactions to it from Sinn Fein and campaigning groups. Mary-Lou McDonald called it “outrageous”, “despicable…it would make a despot blush”.  I have been told by usually reliable sources that the British Labour Party leadership had decided not to oppose the legislation, but were persuaded to do so by Sinn Fein. As readers will know, Sinn Fein’s abstentionist MPs don’t bother even to go into the parliamentary chamber to oppose legislation like Brexit that is clearly against Ireland’s interests – clearly on this occasion that didn’t stop them brazenly trying to influence votes from outside. Sinn Fein’s mind-bending hypocrisy is on full show here, with not a scintilla of recognition that among the main beneficiaries of this Bill will be former practitioners of violence belonging to the IRA and other republican paramilitaries.

Relatives for Justice chief executive Mark Thompson came out with a remarkably quick statement branding the legislation, which is nearly 100 pages long, a “blanket amnesty” which was “anti-victim.” Thompson is perhaps a year out of date, thinking he is still reacting to the British government’s now abandoned 2021 proposals for a total amnesty for soldiers, police and paramilitaries, and for the abandonment of all future investigations, prosecutions and trials, criminal and civil.

In contrast, the centrepiece of this legislation is an Independent Commission for Reconciliation and Information Recovery (ICRIR), headed by a British government-appointed judicial figure as chief commissioner. The ICRIR will be obliged to grant the perpetrator of a killing or other attack immunity from prosecution if conditions set out in the legislation are met. The most significant among these is that the perpetrator reveals all information about the attack “true to the best of [his/her] knowledge and belief.”

This new version of the legislation allows victims and their families to initiate investigations through the ICRIR, which would henceforth deal with all outstanding legacy cases. “It creates the potential to put victims and their families in the driving seat if they avail of it,” says Yeates. Northern Ireland Office officials say in this respect the legislation is similar to the South African Truth and Reconciliation Commission, and believe it adheres to international human rights obligations.

However Yeates also points to major flaws. The most damaging are the proposal that “no criminal investigation of any Troubles-related offence may be continued or begun” after this Act comes into force, and the proposal that “a relevant Troubles-related civil action” brought on or after 17th May may not be continued after this Act comes into force.

Yeates points out that this gross denial of justice to victims and their families is certain to be challenged in the courts. He suggests instead making “the proposed route of redress in the Bill an option for victims and survivors, while leaving the rapidly closing window of court proceedings also open to them. Everyone acknowledges that very few of the 1,400 or more outstanding murder investigations in Northern Ireland can be brought to finality, led alone thousands more involving people who suffered life-changing injuries.”

Another major flaw is that because it has been introduced unilaterally by the British government, the Bill does not cover victims and survivors in the Republic of Ireland (notably those whose family members died in the May 1974 loyalist bombings in Dublin and Monaghan). The British will no doubt blame the Irish government for not engaging with it seriously on the issues of legacy and amnesty. And they would have a point: Dublin has been immovable on legacy issues since the 2014 Stormont House Agreement, even though the legacy institutions of that agreement (notably an independent Historical Investigations Unit to investigate outstanding killings and alleged police misconduct, and an Oral History Archive to allow those involved to share their experience of the Troubles) have been stillborn.

A third huge weakness, says Yeates, is that there is no reference in the Bill to how far perpetrators/ex- combatants must go in order to “earn” their immunity. If they are required to implicate others, then it will be seen as an ‘informers charter’ and few if any former combatants will come forward.

Yeates wants the work of the new Commission to be based on mediation and reconciliation rather than legal and police procedures, thus following the example of ‘conditional amnesty’ for ex-combatants/perpetrators adopted by the South African Truth Commission. He writes: “It would be far better if former combatants on all sides could earn their immunity by agreeing to engage fully with victims and survivors (assuming the latter so wish), acknowledging the pain and suffering they have inflicted and offering what amends they can”. Compensation would remain a matter for the British government because few if any former combatants would have the means to compensate their victims financially.

“Such a process can at least lead to reconciliation on the facts of what happened: on who was responsible and why it happened. Without reconciliation on the facts, there can be no possibility of reconciliation on anything else, at either an individual or societal level.”

In a recent Liverpool University/Irish News opinion poll, around half those polled (53.5% of nationalists and 48.6% of unionists) agreed with the proposition that “we can only get truth for victims and survivors if we offer conditional amnesties to those who offer up the truth.” The people of Northern Ireland, if not its politicians, are starting to recognise that recourse to the courts is just not feasible as a way of getting justice when most of the incidents in which people were killed and injured occurred over 40 years ago and many of those responsible are now themselves dead. In another 15 or 20 years they will all be dead and the chances of justice for the victims and survivors and their families will be zero. It is time to move on and try something new.

A ‘conditional amnesty’ provision of this type would also do away with the random and selective nature of the very few prosecutions for Troubles-related crimes, and even fewer convictions, that have happened to date. At least the relatives of those who died in Derry and Ballymurphy have a remote chance of getting some recompense from the British government. But what about the much larger number of people who were murdered by paramilitaries of all stripes, republican and loyalist? What chance have their families of getting any truth recovery or recompense? Until now, none.

If even some perpetrators/former combatants, who have been living with a bad conscience for up to 50 years, were prepared to come forward and engage with their victims and their families in return for a ‘conditional amnesty’, the Truth Recovery Process proposed by Yeates and his group would offer those families some hope of coming to terms with the horrors of the past.

1 ‘Troubles Bill won’t address the deep divisions that persist’, Irish Times, 30 May

PS In a striking example of confirmation bias at work, the sub-editor who put the headline on Yeates’ article in the Irish Times got it completely wrong. It is not the proposed Bill that “won’t address the deep divisions that persist”, but the “judicial and police investigatory procedures” that have failed repeatedly in recent years. Not for the first time in Northern Ireland, it is time to try reconciliation.

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