Opinion

Patricia Mac Bride: Legacy bill a slap in the face to victims and survivors

Northern Ireland secretary of State Brandon Lewis has defended the legacy and reconciliation legislation outlined in Westminster this week.
Northern Ireland secretary of State Brandon Lewis has defended the legacy and reconciliation legislation outlined in Westminster this week. Northern Ireland secretary of State Brandon Lewis has defended the legacy and reconciliation legislation outlined in Westminster this week.

On Tuesday of this week the British government introduced the Northern Ireland Troubles (Legacy and Reconciliation) Bill in Westminster which will provide for, among other things, amnesty from prosecution in some cases.

It will establish an Independent Commission on Reconciliation and Information Recovery (ICRIR)

Once again, we have a situation where the received notion of reconciliation is that it equates to victims and survivors being expected to forgive and forget. But we have to move away from a process of dealing with the past which places an undue burden of responsibility on victims and survivors and fails to place them at the centre of any process.

The capacity to access justice is the established paradigm for societal repair, and conflict resolution requires that accountability is enshrined within justice. That is what reconciliation should mean. This bill, despite its name, drives a coach and horses through any notion of reconciliation for victims and survivors

There was widespread condemnation of the British government's previous amnesty proposals announced last year, which would have provided a blanket amnesty in the form of the introduction of a statute of limitations on all conflict-related cases. This proposal was widely criticised by the political parties and by advocacy groups for victims and survivors.

In setting forth those proposals last year, the British government was saying that the price they were willing to pay for covering up the dirty war and ensuring that no former military or RUC personnel were prosecuted for acting outside the law was that no-one would be prosecuted for conflict-related acts. For many, particularly in unionist political circles, that was just too bitter a pill to swallow.

Under international human rights law, an amnesty cannot be given for gross violations of human rights including the violation of the right to life, which is what’s being proposed in this legislation. Brexit hasn’t removed the ability to bring cases against the British government to the European Court of Human Rights. The European Convention on Human Rights is still enshrined in British law by the Human Rights Act. Until it is repealed, of course, as the Tories plan to do. For now though, we’re expected to accept Brandon Lewis’s word that the provisions of the bill are compatible with the convention.

The legislative proposals announced this week include that, if someone comes forward with information about a conflict-related event, then they will be granted amnesty in return for the provision of that information. It is at the discretion of the ICRIR whether the person will be granted an amnesty in relation just to that specific act or whether it will be a blanket amnesty that will cover any and all unlawful acts that they may have been involved in. It is also not clear what will happen if someone gives information incriminating another person. Will that person be prosecuted? Will they be given the opportunity to disclose information about their activities? Will they, in turn, incriminate others?

The fact that a request for a grant of immunity will not be valid if it is made by anyone with a conviction for a conflict-related offence jars with the bill’s stated aim of recovering as much information as possible for victims and survivors.

The spectre of the supergrass trials of the 1980s looms large over these proposals, in the sense that stories were told at that time by informers in order to protect themselves. The more the stories were embellished and the more people the stories were told about, the less reliable they became and the entire system came crashing down.

Perhaps the greatest area of concern is who will decide what constitutes sufficient cooperation under the proposals in order to warrant the granting of an amnesty. We know that the Chief Commissioner will be a senior judge, someone who has served in the High Court or above, and the Commissioner for Investigations looks set to be someone who has formerly served as a senior police officer. What the required skills for other commissioners is likely to be is, as yet, unknown, but these are the people who will have the power to delegate other persons who will then have the power to grant an irrevocable immunity.

There are huge questions over how effective the commission’s investigations can be in terms of holding perpetrators to account if the primary aim is information recovery. There is simply no incentive for those who know what happened to engage with a process that is time-bound to five years. It is a process which is entirely focused on the perpetrator, who is given a choice whether to engage in the process or not.

The bill has already shut down any future civil actions and proposes to curtail legacy inquests from May 2023. It is, in no uncertain terms, a slap in the face to victims and survivors who have for far too long been ignored in the hope that they will go away.

What is likely to happen next is that the legality of the legislation itself will be tested, and found wanting.