Days before the virus took over our world, the British government released a paper on a mechanism to resolve the legacy of the Troubles.
It received a near universally hostile reception. The Irish government, the Catholic bishops, the two nationalist parties, Alliance and many victim/survivor groups had negative things to say about it. The unionist parties, as per usual, were a bit for it and a bit against it. The Irish government was more annoyed that it had not been consulted than it was with the content. The others were annoyed that it was a sell out of the Stormont House Agreement or that the proposal was to satisfy demands from the Conservative Party that British soldiers be protected from facing any criminal justice system.
The most trenchant and authoritative criticism came from a report issued by CAJ (Committee on the Administration of Justice) in collaboration with academics from Queen's University. In a thorough and helpful manner, it lays out the various proposals that have been made over several years and benchmarks them on their compatibility with the Stormont House Agreement and the European Convention on Human Rights. In summary, the CAJ report finds that the new proposals by the British government abandons the police investigations that were (supposedly) agreed by the local political parties and that the standards of an independent investigation into murder as required by the European Convention are also ignored.
The criticism that the British are motivated by the pressure to protect their soldiers from prosecution is obviously correct. But that same criticism can be made against all the groups who have a stake in this most sensitive issue. There is no group who has the bragging rights when it comes to dealing with the past. The governments, the political parties, the survivor and victim groups have all responded to dealing with this legacy only through the prism of their own experience and needs.
The ground that is our past, and the efforts to sort it, has been rotavated and trampled on so much that it has become a swamp. It has been churned up so much that there is very little solid ground left on which to construct a solution.
The motivation of the British government probably stinks but the new proposal may be the only solid ground left on which to build. Politics never sleeps. Politics has moved far in the last ten years and further still in the last month. The new British proposals can be worked on and improved. The core proposal for a small legacy commission of a few experienced and authoritative people is compatible with the core proposal of the Consultative Group on the Past. On the other hand, the complicated governance mechanism in the Stormont House Agreement is a major political weakness.
Complete rejection of the government proposal at this time might well ensure that the more reasonable and rightful demands of victims and survivors will sink into the swamp.
There is surely enough sense within the British system to know that a hierarchy between their soldiers and others who were responsible for deaths will not stand up judicially or politically. The critique that the proposals do not comply with Article Two of the European Convention is probably judicially correct but politically weak. There have been exceptions before and if the two governments make a case that a quarter of a century has passed since our troubles and that the proposal does not exclude a full police investigation in a small number of cases, then it is likely to receive a favourable hearing.
Put all that beside the societal weariness and intolerance to the past that will exist after Covid-19 and the ability of the politicians to keep fighting these issues for another ten years and the case for not throwing the baby out with the bathwater comes into strong focus.
