By Nadine Finch
On 14th July 2021, the Government published a command paper, Addressing the Legacy of Northern Ireland’s Past. Its contents unilaterally departed from the 2014 Stormont House Agreement, signed by the Irish and British Governments and the Northern Ireland Assembly and designed to assist in the transition to long-term peace and stability in Northern Ireland. The Agreement adopted an approach to the past that promoted reconciliation, upheld the rule of law, acknowledged and addressed the suffering of victims and survivors and facilitated the pursuit of justice and information recovery.
Legislation is due to be laid in Parliament later this Autumn that will formalise the proposals in the Command Paper and ignore key sections of the Stormont House Agreement. There are already a number of other bills before the Parliament, which seriously undermine common law standards, such as the equality of arms, the separation of powers between Parliament, the elected government and the judiciary and respect for international human rights norms. These include the Nationality and Borders Bill, the Police, Crime, Sentencing and Courts Bill and the Judicial Review and Courts Bill.
But the proposed Northern Ireland Amnesty bill goes even further and seeks to truncate or prohibit all investigations and legal actions concerning killings in Northern Ireland between 1968 and 1998. This will include not only criminal prosecutions but also inquests, civil actions, including claims for judicial review, and investigations by the Police Service of Northern Ireland and the Police Ombudsman for Nothern Ireland. Therefore, the judicial arm of the UK’s unwritten constitution will be powerless and victims and survivors will have no legal assistance when challenging members of the security forces and the police and those who colluded with them over a thirty year period.
These incidents may seem to be a long time ago, but very little progress has been made on legacy issues since the signing of the Good Friday Agreement on 10th April 1998. The Police Service of Northern Ireland did have an Historical Enquiries Unit between 2005 and 2014 but, as Her Majesty’s Inspectorate of Constabulary found in 2013, the HEU treated cases, which involved state actors or those who were colluding with the state, less rigorously than other cases and its approach to cases involving the state was inconsistent with the UK’s obligations under Article 2 of the European Convention on Human Rights.
As a consequence, there are still around 1,200 cases being considered by the Police Service of Nothern Ireland’s Investigation Branch. The work of the Police Ombudsman for Northern Ireland was also frustrated by the Police Service for Northern Ireland, who opposed applications for disclosure and sought to obstruct investigations which may have revealed errors or collusion on their part. In particular, in the investigation into the murders at Heights Bar in Loughinisland, Dr Michael Maguire, a previous Police Ombudsman, noted that one of the documents that was finally disclosed was marked “NDD/Slow Waltz” (NDD = No Downward Dissemination and ‘Slow Waltz’ means share in slow time, if at all).
Between 2001 and 2003 the European Court of Human Rights also heard six cases relating to inquests heard in Northern Ireland into deaths involving the police or security forces or where there were allegations that they had colluded with paramilitary organisations. The Court concluded that these inquests did not comply with the procedural requirements necessary to uphold the Article 2 right to life. In particular, it found that documents were not being disclosed to families and inquests were not being held promptly. The failure to list inquests persisted even after these findings and it was necessary for a further action relating to excessive delay to be brought in 2013.
More recently, the Northern Ireland judiciary has become more pro-active and in 2016 Lord Justice Kerr published a five-year plan to schedule all outstanding legacy inquests and establish a Legacy Inquest Unit. However, a funding bid by the Department of Justice to provide resources for this Plan was then blocked by the Democratic Unionist Party First Minister until February 2019 and funding only became available after legal action had been taken.
Mrs Justice Kerr, who is now the Lady Chief Justice for Northern Ireland, then devised a schedule for the inquests and opened preliminary hearings to ensure that they could proceed to the coroners court. The Pandemic delayed this schedule but by August 2021 ten inquests into fifteen deaths had been completed and 42 inquests into 69 deaths are pending. If the Government’s proposals become law, these inquests will not be permitted to continue and no further such inquests will be allowed.
The power of an inquest to compel substantial disclosure and to provide families with the information necessary to start the path to reconciliation was very clearly illustrated by the recent Ballymurphy Inquest. Ten people had been killed by soldiers from the 1st Battalion of the Parachute Regiment in a residential nationalist area of Belfast on 9th and 11th August 1971, as the Army started to intern suspected Republicans without charge or trial. One was a mother and another a priest and at the inquest Mrs Justice Keegan found that all ten people killed were entirely innocent and the force used by the British Army had been in breach of Article 2 of the European Convention on Human Rights.
The inquest took 100 days, partly due to the failure by the Ministry of Defence and its witnesses to co-operate, but it did result in substantial disclosure of evidence and gave the families the opportunity to see and hear the witnesses being cross-examined.
Its ability to get to the truth of events, which happened 30 years ago and which involved multiple deaths and protagonists, set a very high bar which will not be met by the proposal in the Government’s Command Paper to establish an information recovery body, that would have no legal powers to compel disclosure and would not provide families with access to legal aid or the courts. Given the history of collusion between the police and security forces and paramilitary organisations and the on-going existence of the latter, as seen from recent public threats by the Ulster Volunteer Force and the Ulster Defence Association, removing the involvement of the courts from the process is also both naïve and potentially dangerous.
The manner in which the Government has promoted the information recovery body is also disingenuous. It seeks to compare it to South Africa’s Truth and Reconciliation Commission without taking into account the fact that in South Africa those, who had committed offences, had to apply for an amnesty and their application was heard in a hearing before the Commission where witnesses were called and evidence examined in a court setting. There was not the form of unconditional and unqualified amnesty proposed by the UK government for events in Northern Ireland, which will not require a confession from those responsible for killings and other incidents or ensure that families and survivors can be involved before they are completely exonerated from blame.
The proposals also go much further than the Overseas Operations (Service Personnel and Veterans) Act 2021, which came into force on 30th June 2021 and applied to actions of British forces abroad and not in Northern Ireland. This merely introduced a five-year limitation period for service personnel who committed acts which made them liable to criminal prosecution. Even then criminal prosecutions were permitted in exceptional circumstances and the limitation period did not apply to allegations of sexual offences, torture, crimes against humanity, genocide or war crimes. Civil human rights claim were also permitted in some, albeit limited, circumstances.
In their recent report, Addressing the Legacy of Northern Ireland’s Past: The Model Bill Team’s Response to the Northern Ireland Office Proposals, the Team drawn from Queen’s University, Belfast, and the Committee on the Administration of Justice, Belfast, also compared the UK’s amnesty proposals to that passed under General Pinochet in Chile’s 1978 Amnesty Act. It noted that, unlike the current UK proposals, offences of sexual violence and abduction of minors were excluded and it only applied for the first five years of Pinochet’s seventeen-year dictatorship. Crucially, it also excluded individuals who were currently subject to legal proceedings and only applied to criminal, and not civil, proceedings.
The history leading up to the proposed amnesty is complex and sometimes contested. The reasons that the Amnesty must be opposed is also complex. For those who would like to learn more, Labour for Irish Unity is organising a webinar about the amnesty, “No Reconciliation without Truth” at 7pm on Wednesday 13th October 2021. Tickets are available here.
Labour for Irish Unity webinar
No Reconciliation without Truth
7pm on Wednesday 13th October 2021.
Anne Cadwallader, author of Lethal Allies: British Collusion in Ireland
Padraig O Muirigh, O Muirigh Solicitors
Professor Kieran McEvoy, Queens University, Belfast
Alan Brecknell, Pat Finucane Centre
Anne will address Britain’s colonial role in Ireland and the international context of amnesties. Paddy will look at the existing legal mechanisms that exist for discovering the truth necessary for reconciliation and how they functioned in the Ballymurphy Inquest. Kieran will look at the conclusions reached by the Model Bill Team in relation to the UK’s proposals and Alan will speak, both as the relative of a victim and as someone with expert knowledge of the Glenanne Gang killings.
Nadine Finch is Co-chair, Labour for Irish Unity.
Image: A mural in Belfast, Ireland, commemorating the victims of the Ballymurphy Massacre in 1971. Source: https://www.flickr.com/photos/78918694@N00/2919917680/. Author: Flickr user “PPCC Antifa”, photograph of work by public artist R. Ó Murchú, licensed under the Creative Commons Attribution 2.0 Generic license.
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