The submission of five former secretaries of state of both parties to the UK government’s consultation on their draft Legacy Bill gives significant backing to the idea of an amnesty or statute of limitations. It amplifies the call some of them and retired security chiefs made in the House of Lords last month.
If the decision was to rest with the British establishment alone, an amnesty by whatever name would have featured as a formal option for dealing with the past already, mainly to protect former soldiers and only reluctantly including the unruly Irish tribes in its ambit.
The problem if problem it is, is that the unruly tribes are in unholy alliance against amnesty for opposite reasons; Sinn Fein because it would let the police the army and MI5 off the hook over collusion and other alleged violations ; and the unionist parties because amnesty would become the climax of years of deeply loathed concessions to terrorists since 1997.
The deadlock though is not complete. The DUP are not opposed to the idea of an independent Historic Investigations Unit to take over historic cases from the hard pressed PSNI.
They insist however that the HIU’s selection of cases…
must be proportionate and reflect the fact that over 90% of murders in Northern Ireland were carried out by terrorists. There must be no more hierarchy of victims, with preferential treatment given to those killed, often legitimately, by the Armed Forces or Police.
The DUP have not adopted the same tone of implacable opposition to the entire Legacy review like the NI Police Federation who said recently.
This consultation amounts to an assault on the names, reputations and standing of the men and women who stood against republican and loyalist terrorism.
In short, it contains proposals which, if implemented, are heavily biased against the police officers who, at great personal cost, created the environment for peace.
The proposals are seriously flawed and serve only to re-write the past, turn facts on their head and apply a veneer or gloss over some of the most atrocious crimes perpetrated by terrorists fuelled by hatred.
The ‘police family’ of serving and former officers is appalled at the Government’s direction of travel. By engaging in an extensive consultation on legacy, it is opening t he door to bitter and implacable opponents of justice and the officers who held the line. Alive or dead, serving or former, these proposals will result in officers being trailed through the most monstrous ‘circus’ where their good names and reputations will be shredded.
The nub of the problem is the belief – shared even by the former ministers – that the dice maybe loaded against former soldiers and police “ because records and information ( on them) are more readily available – but none so far as we can establish for paramilitaries.”
In rational terms these arguments can be addressed. For a start, the authorities hold the case files on the security forces and the paramilitaries alike. The DUP not unreasonably argue for a form of “sifting.” cases. The transitional justice academic lawyers of “the model Bill team” whose meticulous work greatly influenced the draft Legacy Bill say that the HIU should be able “to have discretion to vary beyond chronological order.”
In their magisterial analysis of the government’s draft bill – so far they only one of such detail and quality – the lawyers also argue that the HIU should be more independent than the government has so far allowed and should not include former RUC and PSNI officers. This arouses fears that the HIU would be staffed by a team of outsiders who would intentionally or otherwise discriminate against state servants and serve the interests of a narrative of freedom won by armed struggle.
A hierarchy of victims remains a problem both for delivering justice and the revived proposal for compensation payments to victims. The only way through surely is as the model bill team and many others recommend, that such payments should be made on the basis of need. the obvious settlement which is disgracefully long overdue.
In spite of the familiar sound and fury, it is just possible to see a way ahead for the Legacy proposals. The proper way to proceed is to examine closely the briefs of the HIU and the other statutory bodies. The parties might be able to meet on the idea of spending the next five years and 150 million quid tasking the HIU to examine the strength of available historic evidence class by class and only then case by case. If this finally confirms the belief that few cases for prosecutions will emerge, the case for amnesty in exchange for disclosure as the route to “truth” even limited truth, will then become clearer.
Does this government have the political will to re-open negotiations with the parties and consult the Irish government who are of course directly involved? Will they have the commitment to bring a Legacy Bill before the Commons; or will they rest on the mutual veto on the local parties and allow yet another report on dealing with the past to gather dust? The precedents are not good.