It is all or nothing on dealing with the legacy of the Troubles. Either all sides must face the same prospect of prosecutions and convictions, or all sides must be given an amnesty or the closest thing legally possible to an amnesty – a statute of limitations is most often mentioned.
This the real divide on the subject and it cuts across traditional lines. The British government and Sinn Féin want an amnesty; other nationalists, unionists and the Irish Government do not.
Even in Northern Ireland this is poorly understood, as it suits various interests to confuse the issue. The British government wants an amnesty for its former soldiers because pursuing them for Troubles-era crimes is politically unacceptable in Britain. The blanket amnesty this would require would mean no justice for victims of terrorism. This is considered a price worth paying in Westminster and MPs across the political spectrum have little compunction in saying so.
Sinn Féin takes the same position on its former “soldiers”, although it is far more squeamish in admitting it, given the prominence of victims issues within nationalist communities. This is what sank the first attempt at an amnesty.
In 2001, the British government and Sinn Féin agreed a de facto amnesty at the Weston Park talks – the first major negotiation after the Belfast Agreement.
This progressed as far as a 2005 Westminster Bill, until the SDLP embarrassed Sinn Féin into withdrawing support for it, by pointing out it included security force personnel.
Former soldiers or terrorists
There is no doubt another attempt would be the preferred British and republican option – any prospect of prosecutions for their former soldiers or terrorists pushes an amnesty back on to the agenda. Objective considerations of legacy tend to do the same. In 2013, when the topic was last seriously discussed, an amnesty was proposed with varying degrees of reluctance by the Northern Ireland attorney general, a Catholic bishop, a former chair of the Policing Board and numerous academics.
This week, Northern Ireland’s victims commissioner demanded the government rule out an amnesty to keep it off the agenda. Last week, SDLP leader Colum Eastwood told those seeking forms of amnesty to at least be honest about the implications.
Unionism would undoubtedly like a partial amnesty for soldiers and police officers but it cannot accept the amnesty for terrorists that would come with it.
The importance of IRA victims to the unionist population is too high, while the influence of loyalists is too low to play the former off against the latter, as Sinn Féin has done with victims and paramilitaries inside its own community.
The ultimate legacy question is how much everyone else will be fooled and divided along the way
So the unionist approach to legacy has been a rather strangulated call for “balance” – an acceptance that all sides must face the same prospect of prosecutions and convictions, combined with a complaint that the focus has been too much on wrongdoing by the security forces.
The validity of this complaint is debatable but that is as much of a debate as unionist parties are prepared to risk, for fear of implying an amnesty themselves.
In the House of Commons last week, when Northern Secretary Karen Bradley claimed no British army killings had been crimes, she was responding to a question from DUP MP Emma Little Pengelly. Some observers detected connivance between the British government and its unionist confidence-and-supply partners, but this missed the point that Bradley was not answering Pengelly’s question. The DUP MP never mentioned the security forces and asked only how terrorist murders would be investigated.
British-unionist plot
On legacy, fears of a British-unionist plot are precisely wrong. The truth is that unionists fear a British-republican plot, and with good reason. Not only have London and Sinn Féin sought an amnesty before – the last time under a Labour government - but all their priorities still point in that direction.
Northern Ireland now has a set of legacy mechanisms awaiting operation.
The DUP, Sinn Féin and the British government agreed them in 2014 and re-agreed to implement them before Stormont collapsed. They are currently out for consultation.
One of these mechanisms already contains a form of amnesty in return for confession. A fuller amnesty could be bolted on elsewhere before or during the system’s scheduled five-year operation, while an end to Troubles prosecutions is the presumed end-point of the exercise. But this remains too contentious to state explicitly.
Legacy has a parallel with Brexit in that neither are mentioned in the Belfast Agreement, yet views on how they interact with its “spirit” have created their own reality.
From the agreement’s prisoner release programme, through Weston Park and other side deals, it has always been clear that Sinn Féin and the British government interpret the peace process as implying an amnesty, even if that remains unfinished business.
As holders of all the cards, it must be presumed they will get there in the end. The ultimate legacy question is how much everyone else will be fooled and divided along the way.