The publication of the British government’s Troubles (Legacy and Reconciliation) Bill has led to predictable and almost universal condemnation. Yet the fact that a substantial piece of legislation has been produced after years of procrastination is itself remarkable and deserves serious examination.
There is, of course, serious political calculation involved. It is no coincidence that the British government abandoned its previous proposals for a “blanket” amnesty after the publication of the latest series of opinion polls conducted by the Institute of Irish Studies at the University of Liverpool for the Irish News in the lead-up to the Northern Ireland Assembly elections. The issue of conditional amnesties was included in these at the request of Truth Recovery Process, an organisation comprising former combatants, victims and survivors, academics and others working for peace and reconciliation.
Even we were surprised at just how widespread acceptance of the concept has become. Some 48.6 per cent of people interviewed who identified themselves as unionist 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 comparable figure for those identifying as nationalists was 53.5 per cent – and for those who defined themselves as belonging to neither bloc, the figure was 40.8 per cent.
By contrast, the percentage of those who disagreed with the need for conditional amnesties across these three groups were 29.1 per cent, 12.6 per cent and 22.8 per cent respectively. These figures reflect a growing desire among the people of Northern Ireland to move on, including many victims and survivors. It is also a recognition of the fact that 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.
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One major initiative that has to be welcomed is that the Bill allows victims and their families to initiate investigations through the Independent Commission for Reconciliation and Information Recovery. This body would be set up by the British government under the Act to deal with all of the outstanding legacy cases. It creates the potential to put victims and their families in the driving seat if they avail of it.
That said, the Bill has major flaws. The most egregious are the proposals in section 33 that “no criminal investigation of any Troubles-related offence may be continued or begun” after this section of the Act comes into force’, and those in section 38 that “A relevant Troubles-related civil action that was brought on or after the day of the first reading in the House of Commons of the Bill” may not be continued “on and after the day on which this section comes into force”.
This gross denial of justice to victims and their families is certain to be challenged in the courts. An obvious solution would be to make the proposed route of redress in the Bill an option for victims and survivors, while leaving the rapidly closing window of court proceedings open to them. Everyone acknowledges that very few of 1,400 or more outstanding murder investigations can be brought to finality, let alone thousands more involving people who suffered life-changing injuries.
Another major defect of the Bill is that it has been introduced unilaterally by the British government and does not cover victims and survivors in the Republic of Ireland. As such it represents a major departure from the spirit of the Belfast Agreement. The British government will no doubt blame the Irish Government for not engaging with it seriously on the amnesty issue, and certainly the latter has not changed its position on legacy issues since the adoption of the Stormont House Agreement in 2014. This has been primarily out of concern for victims and survivors but it has also fueled the belief of many unionists that collusion existed between elements in the Irish Government and State agencies with the Provisional IRA.
A major stumbling block to the British proposals among paramilitaries, both loyalist and republican, is that there is no reference in the Bill to how far former 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”.
The reality is that very few former paramilitaries are likely to come forward if this is the case and, more importantly, the process is not based on mediation and reconciliation rather than predicated on legal and police procedures. 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), acknowledge the pain and suffering they have inflicted, and offer what amends they can. The British government must provide adequate compensation to victims anyway, because in the vast majority of cases former combatants do not possess the means to do so.
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.
Using judicial and police investigatory procedures may help clear the legacy books but it won’t address the deep divisions that persist as a result of the Troubles.
Padraig Yeates is a journalist, historian and secretary of campaign group the Truth Recovery Process