‘Troubles Bill won’t address the deep divisions that persist’, Truth Recovery Process Submission to Ian Jeffers, Commissioner, CVSNI, August 24th, 2022

The publication of the British Government’s Northern Ireland 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 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 last two polls included questions on the issue of conditional amnesties at the request of the Truth Recovery Process.

We were anxious to test out the feedback we were receiving from discussions with various groups and individuals that the almost universal consensus expressed by politicians, legal experts, victims and survivors organisations, journalists and other opinion formers that ‘Truth and Justice’ through the courts was the only acceptable way of dealing with Legacy issues did not necessarily reflect the reality on the ground. Even some champions of this consensus admitted privately that for the vast majority of those directly affected and society at large this was not a realistic option and would reduce rather than improve the prospects for wider societal reconciliation. This belief was shared by some victims and survivors but they were reluctant to do so publicly.  

Even we were surprised at how widespread popular acceptance of the concept of some form of conditional amnesty has become because of the patent failure of the criminal justice system to address the needs of victims, survivors and society at large. The figures speak for themselves. In the April poll, 38.6 per cent of people who identified 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 the prospect of people being charged and convicted of Legacy offences is minimal. Indeed many of those responsible are now deceased.[1]

This trend continued in the next poll published in July, although the figures are not directly comparable because the breakdown is based on party affiliations. Within the designated communities, support for conditional amnesties was highest among Sinn Fein voters at 58.6 per cent and lowest among Unionists. The figure was 33.5 per cent among DUP voters, compared with 26 per cent who disagreed with conditional amnesties and 32.9% were undecided.

TUV voters split with 34.2 per cent in support and 34.2 per cent opposed to conditional amnesties and the balance of 31.5 per cent.

Among Alliance voters 46 per cent supported conditional amnesties, compared with 28.1 per cent against. The parties among whose voters the concept of conditional amnesties was most popular were the PBP at 61.6% and the NI Conservatives with 77.8 per cent.  The latter figure no doubt reflecting concerns about British Army veterans and former RUC members.

Overall, when the Institute of Irish Studies completed its analysis it found that 45.1 per cent of those polled supported a conditional amnesty of some kind compared to 18.2 per cent who were opposed, with the balance undecided.[2]

We believe that the failure of all of the political parties in Northern Ireland to take cognisance of this trend does a great disservice to the victims and survivors whom they claim to champion. Like everyone else, they need to consider alternative proposals for channelling the justifiable anger and hurt of victims into a more constructive approach towards Legacy issues that better serves the interests of those most directly affected and society at large. The experience of litigation in both the criminal and civil courts has been to exacerbate rather than reduce communal tensions, while it was often retraumatising for those directly involved.

The Bill

It is clear that the Government legislation prioritises the demands of its own adherents, particularly the highly vocal veterans lobby. But it also reflects to some degree the feedback it has received from its own consultative process, and no doubt officials in the Northern Ireland Office are as capable of reading the opinion polls as anyone else.

Unfortunately the best that can be said for the legislation is that it is a lazy attempt to address the issues in ways that satisfy no one. The only major initiative in the Bill that has to be welcomed is the provision that allows victims and their families to initiate investigations of their cases through the proposed Commission. This creates the potential to put them in the driving seat if they wish to avail of it, but the inadequacy of the other provisions will probably negate its possibilities.

Among the Bill’s many 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 has come 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 amendment 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 incidents where people suffered life changing injuries.

An even more fundamental 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 and the provisions of the Belfast-Good Friday 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 fuelled the belief of many Unionists that collusion existed between elements in the Irish Government and state agencies with the Provisional IRA. 

If the Bill should become law the denial of people’s fundamental rights of access to the courts for redress will at the very least delay once more the prospects for justice and reconciliation in Northern Ireland as it progresses through the inevitable appeal to the European Court of Human Rights, assuming that the British Government remains a signatory to the Convention.

Even if implemented, a major stumbling block to the effectiveness of the British Government’s proposals is the vagueness of the provisions for immunity. There is no definition in the Bill of 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 will regard the proposed structures, which are reliant on lawyers, police and the judiciary as too similar to traditional legal processes to win their trust.

If we want to achieve significant progress on the road to truth, justice and reconciliation in Northern Ireland we shouldn’t start with this Bill. The process needs to begin with the initiation of discussions with the Irish Government on an agreed way forward and, rather than replicate the procedures and practices of the criminal courts, both parties should aim at establishing a mediation and reconciliation process subject to judicial oversight by the British and Irish governments. Under such a system former combatants on all sides would 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 two governments must provide adequate material compensation to victims. I 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, who was responsible and why it happened. Without reconciliation on the facts there can be little prospect of reconciliation on anything else, at either an individual or societal level. We would urge the British and Irish governments to make the Truth Recovery Process available to all victims and survivors who wish to use it rather than the courts. 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.

Finally, we welcome the statement by the new Northern Ireland Secretary Mr Shailesh Vara on the BBC last week that the Government ‘is still open to negotiations. It is open to consultation. We are still in listening mode. We are still talking – there is still room for making amendments.”  This is an important, if belated acknowledgement of the anger the legislation has generated and, hopefully,  recognition of the need to address the key issues of truth recovery, justice and reconciliation in new ways if we are to lay the Legacy of the Troubles to rest.[3]

Note: At our meeting with the Commissioner we requested our proposal to be costed on a pilot basis to compare it with alternative strategies for addressing Legacy issues.

[1] The Institute of Irish Studies, University of Liverpool, The Irish News

Opinion Poll April 2022. The panel survey was conducted between 11th and 26th March and was undertaken by SMR. The 3 groups unionist, nationalist and neither unionist or nationalist were of near equal size. There were 1000 respondents with and estimated margin of error of 3.1%.

[2] The Institute of Irish Studies, University of Liverpool, The Irish News

The Institute of Irish Studies/Irish News survey was completed by 1000 panel respondents. The survey is predominated by those who voted (83.1%) in the most recent Assembly election in May. The share who are nationalist was 35.3% compared to 27.7% unionist and 28.9% neither unionist nor nationalist. The sample was weighted by religion and has a 3.1 margin of error. The survey was conducted from 28th June to 10th July.

[3] As reported in the Irish News, August 19th, 2022