17 August 2021

As things stand, the Northern Ireland legacy plans are indefensible – but they can be changed for the better

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This is a good month to bury bad policy. On Sunday, as Kabul folded in the face of violent extremism, people in Omagh recalled the work of other zealots who on that day in 1998 murdered 29 men, women and children in a terrorist outrage that could have come straight from the Taliban playbook.

While we are distracted by the West’s capitulation in the face of Afghan terror, closer to home we’ve thrown the towel in too. Victims and survivors of IRA atrocities such as the Omagh and Hyde Park bombs, savaged by republican violence, have had to resort to the civil courts to achieve some measure of justice when failed by prosecutors. For the first time anywhere in the world, members of terrorist organisations were being sued after the criminal process proved inadequate.

Now, new government proposals on dealing with the Northern Ireland conflict, out for consultation, will mean that prior to 1998, those robbed of their loved ones during the anarchy of the Troubles will have nether civil nor criminal recourse to get justice. In an attempt to stop vexatious claims against the tiny number of security force personnel who committed crimes, this moratorium must also mean the huge majority killed or maimed by republican and loyalist paramilitary terrorists will never be held accountable for their crimes. All terrorists who have evaded prosecution will now get amnesty, not jail time. Many of their atrocities rival the worst excesses of sectarian killers in the fields of Bosnia or the streets of Raqqa, if not in scale, then certainly in intent. Terrorist killers will be elevated to the same plane as the security forces who did so much and gave so much to stop them. If the original proposals stand, the work of revisionists and apologists for terrorism is complete. It’s infuriating and wrong.

I had lunch recently with the solicitors who led the landmark legal actions against the Omagh bombers. Jason McCue and Matthew Jury have forged a legal career representing victims of terrorism. We agreed that the Government’s proposals, although rooted in a sincere desire to draw a line under the endless (often fruitless) legal process for Troubles victims, was morally and procedurally indefensible. The moral case is straightforward, replacing the possibility of legal justice with nebulous concepts such as ‘truth recovery’ and ‘information retrieval’ is a denial of due process which has a vanishingly small prospect of voluntarily engaging paramilitary combatants who caused 90% of the harm. Why would anyone responsible for some of the most depraved acts of terrorism imaginable voluntarily submit themselves to encountering their victims, except perhaps to retraumatise them?

The proposed statute of limitations on civil, criminal and coronial process is not just antithetical to basic notions of justice, it is itself likely to be mired in litigation for years. It would almost certainly be subject to challenge under the 1998 Human Rights Act as it engages article 2 – the state’s obligation to investigate suspicious deaths. Moreover, by proposing an end to civil litigation like that which held republican bombers liable for the likes of the Omagh and Hyde Park bombs, the Government is in effect expropriating a private right to seek remedy through the civil courts. Finally, the unconditional nature of a ban on all redress for terrorist victims pre-1998, paying no attention to the scale of the harm caused, places a disproportionate disadvantage on victims of violence inflicted by terrorists – particularly republican paramilitaries.

This disproportionality will follow through into and fatally contaminate the other proposed innovations that prop up this invidious process. The security forces were good at keeping records, those they were opposed to much less so. Republican and loyalist terrorists were primarily concerned with pushing up the body count. This has meant that existing legal actions have been wildly skewed in favour of those who opposed the state, relying on legally aided and sometimes politicised campaigns that leave out the majority of the bereaved and survivors. Figures from Northern Ireland’s Public Prosecution service bear this out – former members of the security forces are up to 54 times more likely to be prosecuted than a republican paramilitary. Expecting paramilitaries, freed from any remaining fear of the knock on the door, to voluntarily reveal themselves to public gaze and participate in a ‘happy clappy’ reconciliation process with their victims is an act of supreme naivete. The alternative is unthinkable cynicism.

We prefer naivete. And we want to respond with pragmatism. Rather than be opposed for all the good reasons set out above, if the Government is determined to press ahead with its legacy proposals they must be fundamentally changed to restore the moral balance of power to victims.

We have set out McCue and Jury’s proposals in a detailed submission to the Northern Ireland Office, but in essence they are that, firstly, the Government establish and fund a physical ‘Peace Centre’ staffed by victim advocates, mediators and litigators who have access to all archival material from the state, including from military intelligence and the security service. Then any victim or survivor can apply to the centre to confirm whether a suspect they believe was responsible for the harm caused to them can be corroborated with held evidence. If this is established, that individual is invited to consent to a private reconciliation with the victim that is based on meaningful participation. If the respondent participates to this extent they are immune from further legal action. If they fail to – a test established by and adjudicated on by a panel of judges – then the Peace Centre would fully fund and support a fast-track civil action against the alleged perpetrator.

Crucially, the work of the Peace Centre would be prioritised in terms of ‘harm caused’. No longer would victims of mass paramilitary murders be put to the back of the queue for justice. The silent majority of those killed and maimed in the Province’s awful roll call of unsolved mass murder – Enniskillen, Teebane, Loughinisland, Claudy, Kingsmills – would finally feel like more than the collateral damage from a peace process that has delivered them anything but closure and continues to wound long after the physical scars have healed.

It would be much preferable for the perpetrators of these heinous crimes to never feel safe from the criminal justice process as long as there is breath in their bodies. But we live in an imperfect world.  If the Government is determined to press ahead, despite uniting all political parties in either part of Ireland against them, then they must think again and show by adopting these significant amendments to their legacy plans that the moral imperative trumps exhaustion and expediency. We’ve had more than enough of that this past few days.

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Professor Ian Acheson is an Ulsterman working as senior advisor to the Counter Extremism Project. 

Columns are the author's own opinion and do not necessarily reflect the views of CapX.