Christopher Stanley, Litigation Consultant, KRW LAW LLP, Belfast[1]
In 1729, Jonathan Swift published his Juvenalian satirical essay “A Modest Proposal For preventing the Children of Poor People From being a Burthen to Their Parents or Country, and for making them Beneficial to the Publick”.
As readers of Village know Swift’s essay suggests that the impoverished Irish might ease their economic troubles by selling their children as food to rich gentlemen and ladies.
Swift’s essay created a backlash within the community after its publication.
[i]
On 14 July 2021 Her Majesty’s Secretary of State for Northern Ireland, the Right Honourable Brandon Lewis MP (a lawyer by trade), made a statement in the House of Commons and his office published a Modest Proposal: “Addressing the Legacy of Northern Ireland’s Past” (CP498).
It is fair to say that Mr Lewis’s Modest Proposal created a backlash within the community after its publication.
[ii]
This most recent British government proposal to address the out-workings of the Legacy of the Conflict in Northern Ireland (Dealing with the Past) adds only a little flesh to the bones of Mr Lewis’s plans published at the start of pandemic lockdown in 2020. This was by way of a Press Release “UK Government sets out way forward on the legacy of the past in Northern Ireland” (18 March 2020).
That statement marked a dramatic change of tack from the “New Decade, New Approach” (January 2020) of the Right Honourable Julian Smith CBE MP, Secretary of State for Northern Ireland, and Simon Coveney TD, Tánaiste and Minister for Foreign Affairs and Trade, published to restore devolved government in Northern Ireland.
The British government agreed that:
“16. As part of the Government’s wider legislative agenda, the Government will, within 100 days, publish and introduce legislation in the UK Parliament to implement the Stormont House Agreement, to address Northern Ireland legacy issues. The Government will now start an intensive process with the Northern Ireland parties, and the Irish Government as appropriate, to maintain a broad-based consensus on these issues, recognising that any such UK Parliament legislation should have the consent of the NI Assembly” (page 49)
The Irish government made the following commitment:
“The Government affirms its commitment to working with the UK Government to support the establishment of the Stormont House Agreement legacy institutions as a matter of urgency, including by introducing necessary implementing legislation in the Oireachtas, to deal with the legacy of the Troubles and support reconciliation, meeting the legitimate needs and expectations of victims and survivors”
In under one hundred days Mr Lewis, on behalf of his government, had torn up the “New Decade, New Approach” joint cross-border agreement and in the process abandoned the hard fought for Stormont House Agreement 2014.
The Right Honourable Julian Smith CBE MP became, like Syme, in George Orwell’s 1984, an unperson. His fate to be shared, if the Modest Proposal comes to pass, by all relatives of victims and survivors of the Conflict in Northern Ireland
[iii]
The 18 March 2020 Press Release stated that the UK Government “will now begin an intensive period of engagement with the Northern Ireland political parties, and the Irish government, to discuss these proposals in detail.”
It did not.
What it did do were behind closed-door briefings, no public consultation, and controversial secret meetings at Lambeth Palace with a select few specially chosen to attend. There is no public record. The restrictions of the lockdown provided perfect cover to ferment policy in private within the deserted village of Whitehall and Westminster.
The 18 March 2020 Press Release was both blunt and absent in detail and clearly had an audience in mind: the Tory backbench and those Shire and Red Wall Conservatives who would probably have agreed with Tom Denning’s own Modest proposal in his assessment of The Birmingham Six.
“We shouldn’t have had all these campaigns to get them released if they’d been hanged. They’d have been forgotten and the whole community would have been satisfied.”
Mr Lewis proposed:
A new independent body focused on providing information to families and swift examinations of all unresolved deaths from the Troubles
End to the cycle of reinvestigations that has failed victims and veterans for too long
Ensuring that Northern Ireland veterans receive equal treatment to their counterparts who served overseas.
The focus on veterans signalled a dismantling of the ‘no hierarchy of victims’ as both a political, moral and legal principle (as defined in statute by way of the Victims and Survivors (Northern Ireland) Order 2006 section 3).
The focus on veterans also opened the way to the contentious issue of a statute of limitation and an amnesty.
“We owe a huge debt of gratitude to our Armed Forces for their service in Northern Ireland. That’s why these proposals also put an end to repeated reinvestigations where there is no new compelling evidence and deliver on our promise to protect veterans from vexatious claims.”
As was asked at the time of the Press Release:
An amnesty for who? Soldiers and ‘Terrorists’
Who are the veterans? Soldiers and other members of the British security forces – spies, agents and informers (from all paramilitary groups).
(What vexatious claims?)
[iv]
The publication of Modest Proposal adds, as I noted, only a little flesh to the bones of the press release but is in the spirit of Swift’s Juvenalian satire in its draconian intent to offer a complete, or final, solution, to the Legacy of the Conflict.
“Addressing the Legacy of Northern Ireland’s Past” is an apparently impressive 32-page document. But there is a lot of white space (listen to the void of the white noise) and the type face is large. Of the 32-pages the modest proposal is modestly set out in 24 pages, which is one page longer that the 23 years since the Belfast-Good Friday Agreement 1998. On page two of his Foreword, Mr Lewis calms the Tory back bench and his Cabinet colleagues:
“The current system for addressing the events of that dark and difficult period of our national history is not working for anyone. The intense focus on divisive legal processes continues to drive wedges between communities and undermine public confidence in the police as they go about their work today. Lengthy, drawn out and complex legal processes stifle the critical information recovery and reconciliation measures that could help many families and frequently lead to years of uncertainty for those under scrutiny. In addition to the grave impact on individuals, this also prevents wider society from moving forward.” (Page 6)
Readers of Village will be aware of the intent of Her Majesty’s Government regarding its modest proposals, after its ‘long and careful reflection’ that what is needed (by who?) is to:
“Introduce a statute of limitations to apply equally to all Troubles-related incidents, bringing an immediate end to the divisive cycle of criminal investigations and prosecutions, which is not working for anyone and has kept Northern Ireland hamstrung by its past.” (Page 9)
This proposal is somewhat undermined by the following: “33. The decreasing likelihood of successful prosecutions is supported by evidence, which shows that between 2015 and 2021 just nine people have been charged in connection with Troubles-related deaths.” (Page 19)
Of course, the prosecutions have been of old soldiers. The decisions to prosecute in Legacy-related criminal investigations are taken by independent law officers through the Public Prosecution Service (PPS). Decisions to direct criminal investigations can be made by the PPS to the PSNI.
The proposal continues:
“37. The Government is committed to providing greater certainty for all those directly affected by the Troubles and to enable all communities in Northern Ireland to move forward. This involves looking holistically at all forms of investigations – including civil and coronial processes relating to the Troubles, which like criminal processes, involve an approach that can create obstacles to achieving wider reconciliation.
38. We are therefore considering a proposed way forward that would end judicial activity in relation to Troubles-related conduct across the spectrum of criminal cases, and current and future civil cases and inquests. We recognise that these are challenging proposals. However, ongoing litigation processes often fail to deliver for families and victims, and their continued presence in a society which is trying to heal from the wounds of its past risks preventing it being able to move forward.” (Page 21)
Of course, we all want to move forward whilst avoiding obstacles but why then did the Northern Ireland Assembly at Stormont 20 July 2021 unanimously reject the government Legacy proposals in a rare display of consensus? Because a statute of limitations amounts to a de facto amnesty for all former members of the British security forces and all former Loyalist and Republican paramilitaries.
[v]
The draconian intent of the Modest Proposal regarding hard law is made palatable by the soft-justice focus on reconciliation which the government “wants to help create strong relationships across communities, which respect differences and enable the right decisions for the people of Northern Ireland to be taken” (paragraph 3 page 8) and through “promoting societal reconciliation through acknowledgement, recognition of different narratives and information recovery to the extent that is now possible given the passage of time.” (paragraph 4 pages 8 -9).
After its ‘long and careful reflection’, the British government is of the view “that any process that focuses on the lengthy pursuit of retributive justice will severely hold back the successful delivery of a way forward focused on information recovery, mediation and reconciliation that could provide a sense of restorative justice for many more families than is currently achieved through the criminal justice system.” (Paragraph 7 Page 9).
[vi]
An approach to delivering the out-workings of the Legacy of the Conflict must be a combination of soft justice and hard law.
This was recognised in The Stormont House Agreement 2014.
The Modest Proposal apparently endorses the philosophy of the 2014 Agreement. However, it abandons the Historical Investigation Unit (HIU) model which would have assumed the role of the PSNI in Legacy investigations but would have been independent and maintained the importance of the coronial process in contentious Legacy deaths.
Do the Modest Proposals on Legacy inquests include the pub bombings in Guildford and Birmingham in 1974? – in the latter there are known named perpetrators who are alive and whose names are in the public domain.
To date there has been no attempt by politicians in England to limit access to the civil courts in Northern Ireland (if they can). Legacy litigation has developed on behalf of relatives of victims and survivors to address the human rights deficit created by those politicians in failing to facilitate the necessary mechanisms to discharge those human rights obligations required by way of the Belfast-Good Friday Agreement 1998.
Legacy litigation has enabled relatives and survivors to name those paramilitaries (Loyalist and Republican) and state agents and state agencies who colluded together to facilitate murder, torture, perverting the course of justice, breaches of statutory duties and so forth which the retributive criminal justice system cannot deliver.
The latest proposal presents the following as fact:
“Of the over 1000 civil claims against the MoD; Northern Ireland Office (NIO) and other State agencies, very few are currently at trial stage and a significant number are yet to progress beyond the initial stage of a court order being issued.”
This is because of the failure of those named as defendants to comply with disclosure and discovery applications and to contest every application made by the plaintiff.
This also because of contentious use of Closed Material Procedures (secret justice) applied for by the British government and the PSNI.
“According to the Crown Solicitor’s Office of Northern Ireland the numbers of private claimants in these cases is negligible and the vast majority of cases rely on legal aid.”
This is an unsubstantiated claim. In addition, the Northern Ireland Legal Services Agency applies both merits and means test to all applicants for legal aid.
“These costs are a significant proportion of the approximately £500 million spent on legal aid in Northern Ireland since 2011.”
This is an unsubstantiated claim.
“These cases almost never provide families with the answers or results they seek.”
This is because defendants contest every application which prevents cases coming to trial. Or because the defendants settle before trial.
“There are currently around 36 outstanding inquests relating to deaths that occurred before April 1998” (page 21)
Decisions to direct an inquest or to direct a fresh inquest are made by independent law officers, specifically the Coroners Service for Northern Ireland and the Attorney-General for Northern Ireland (and in one case by the English equivalent law officer when issues of National Security were engaged).
[vii]
“41. We believe this approach is also important to provide certainty for the vast majority of former soldiers and police officers who put their lives on the line to uphold democracy and the rule of law while acting within the law themselves, and who now just want to live out their retirement without the fear of unfair investigations.
42. The UK Government is clear in its aims and believes these are shared by others.” (Page 22)
Since the Modest Proposal was made it is not obvious or clear who these others are. These views are not shared by MLAs at Stormont, they are not shared by politicians in Dublin, they are not shared by civil rights organisations, NGOs and victim support groups.
These aims are not shared by the families of victims, who, contrary to the claim of the British government that “the trauma of the past is passed down to generations with no direct experience of those horrors, reinforcing and renewing division between communities” (page 6), are willing to assume the responsibility for obtaining truth, justice and accountability and who will have suffered further trauma because of these proposals.
[viii]
“The Government is fully committed to fulfilling its human rights obligations, and believes that any approach to legacy reform must seek to ensure that the disproportionate pursuit of criminal justice outcomes in line with one such obligation, does not act as a barrier to others” (Page 25)
I meant no disrespect by invoking Swift’s Juvenalian satire. Swift knew what he would provoke, I fear Mr Lewis did also. Mr Lewis is only the most recent English politician to misread Northern Ireland. His immediate predecessor Mr Smith was getting there but then dispatched as an unperson into the political wilderness.
The current British government uses elision to achieve it policy platform.
It elides the (minimal) number of prosecutions of British Army veterans in Northern Ireland with the more general issue of the criminal acts/human rights breaches/violation committed by British soldiers whilst operating overseas (Iraq and Afghanistan).
It elides access to justice (for example the civil courts in Northern Ireland) with proposals to limit Judicial Review and to have ouster clauses in order to deter public law challenges to policy decisions. It wants to fetter judicial authority (for example the statutory duties in relation to Legacy-inquests in Northern Ireland).
[ix]
After eight years, the recent High Court decision in the Omagh Bombing 1998 resulted in the recommendation that there was sufficient evidence to suggest the bomb could have been prevented and therefore the need for an article 2 ECHR compliant investigation.
The judgment of the UK Supreme Court in 2020, in relation to the murder (assassination/extra-judicial killing) of Belfast-solicitor Patrick Finucane in 1989, also found that no article 2 ECHR compliant investigation into his death has occurred. The government has not directed such an investigation.
Earlier this year Mrs Justice Keegan (now the Lord Chief Justice for Northern Ireland) concluded the Ballymurphy Massacre 1971 Inquest that:
“The Army, however, as trained soldiers had a duty notwithstanding the fact of gunmen in the area to try to protect lives and minimise harm in this type of situation. The use of force by the Army was clearly disproportionate given the number of civilians around in a highly charged atmosphere after the introduction of internment.”
And
“All of the deceased in the series of inquests were entirely innocent of wrongdoing on the day in question”
Earlier this year Mr Justice O’Hara, in his ruling on admissibility in the trial of Soldier A and Soldier C charged with the murder of Joe McCann who was shot dead on 15 April 1972 in the Markets area of Belfast, noted:
“[9] At that time, in fact until late 1973, an understanding was in place between the RUC and the Army whereby the RUC did not arrest and question, or even take witness statements from, soldiers involved in shootings such as this one. This appalling practice was designed, at least in part, to protect soldiers from being prosecuted and in very large measure it succeeded.”
The modest proposal claims that “(British)Security Forces were responsible for around 10% of Troubles-related deaths – the vast majority of which were lawful” (page 20). See directly above and all killings resulting from collusion between the security forces and paramilitaries.
[x]
Mr Lewis’s modest proposal has united traditionally disparate oppositions. It has demonstrated the British government’s dangerous contempt for the Rule of Law. It has undermined the human rights commitments made by way of the Belfast-Good Friday Agreement 1998. It seeks to deny access to justice. It seeks to close all criminal investigations and retributive criminal justice processes which form only a small part of the present system for dealing with the Legacy of the Conflict. It seeks to interfere with the independence of the judiciary by way of limiting Judicial Review public law applications and Legacy-related civil litigation, denying access to the justice which is a foundation of the Rule of Law.
The modest proposal seeks to impose its own narrative – a state narrative – upon the past in Northern Ireland which will serve only to inflame opinion and emotion and fuel dissent. It deploys the rhetoric of truth and reconciliation. It claims to speak for the citizens of Northern Ireland. What the relatives of victims and survivors want is truth.
It is the Burthen of Truth about the Conflict in Northern Ireland that the British government cannot stomach, cannot swallow, cannot digest.
Hence Mr Lewis’s Modest Proposal.
[1] The views expressed are those of the author and not those of KRW LAW LLP.
