Ballymurphy, the UK government’s proposals to deal with legacy issues, and the dogs on the streets.
By Christopher Stanley, litigation consultant.
Statute of Limitations
In London today (11 May 2021), the British government set out its legislative agenda by way of the Queen’s Speech to the House of Lords. Unexpectedly, the British government remains intent on its ambitions to stop investigating Conflict-related Legacy deaths in Northern Ireland and to introduce a Statute of Limitations so that British army veterans will not face prosecution. The details of the proposals remain to be published. The British government also proposed to ‘review’ the Human Rights Act 1998 and legislate to restrict access to Judicial Review.
In Belfast today, Mrs Justice Keegan delivered her verdict in The Ballymurphy Massacre Inquest into the deaths of ten civilians shot by the British army in 1971. The judge found there had been a disproportionate use of force and the shootings violated Article 2 of the ECHR (the right to life). She said “All the deceased were entirely innocent of any wrongdoings on the day in question”. Whilst the verdict of an inquest cannot attribute criminal responsibility or civil liability, the verdict can prompt an investigation by the prosecuting authority.
The Legacy of the Past – the Conflict – in Northern Ireland continues to shape the present and determine the future.
In 2014 there was the possibility that the past could be ‘dealt with’ or ‘policed’ by way of The Stormont House Agreement and its mechanisms of investigation and truth-recovery. A mixture of Transitional Justice, Truth and Reconciliation, Hard Law and Soft Justice.
In 2021 that model was abandoned by the British government by way of its New Decade New Approach proposal.
Today it is apparent that the British government wants to cease contentious investigations into contentious deaths and rely upon truth-recovery mechanisms, Hard Law trumped by Soft Justice.
Not all relatives of victims or survivors of the Conflict want the same thing. But access to the truth is one binding want. How the truth is achieved, if it can be, is the point of contest. Once the truth is ‘out’ what should be done with it? How can truth assist securing peace when “peace comes dropping slow” (Yeats).
In one way establishing a narrative of the Conflict which can be accepted across the communities in Northern Ireland contributes to cementing and securing the peace which was secured by way of the Belfast-Good Friday Agreement 1998 (GFA).
But the truth is oft contested or denied by what Ian Cobain has described as The History Thieves. And truth has consequences: it cannot simply be archived by those very same History Thieves.
It was dirty
The Conflict in Northern Ireland was fought by three sides: Republicans, Loyalist and the British state.
This is not a pernicious counter-narrative, as the exposure of collusion has pointed to, but rather a telling truth about the last Colonial adventure of the British Empire fought on the Narrow Ground of Ulster.
This last bloody campaign, Britain’s Dirty War as Martin Dillon described it, has left both a human-rights deficit in Northern Ireland, which the GFA seeks to address, and a Legacy of state-sponsored terror by way of collusion with both Republicans and Loyalists depending on the political temperature at a particular juncture or the security constituency policy prevailing at prevailing point in time (the two not necessarily aligned).
The difficult question for Westminster politicians and Whitehall civil servants is that a Statute of Limitations for crimes committed during the Conflict before 1998 offends the letter and spirit of the GFA. Who will it apply to – To those British army veterans responsible for the Ballymurphy Massacre? To the Birmingham Pub Bombers? To Albert ‘Ginger’ Baker? To John Downey? – to paramilitaries, agents and informers, old soldiers?
Not a witch-hunt
The word ‘witchhunt’ has been used a lot in relation to the prosecution of British army veterans. It started to be used following the ‘persecution’ of British soldiers accused of crimes committed during the Iraq and Afghanistan ‘campaigns’. It is now extended to apply to British soldiers who served in Northern Ireland.
A witchhunt implies a form of collective hysteria against a particular group – ‘hounding’
Let us be clear:
- the number of prosecutions taken against former soldiers who served in Northern Ireland is low
- the decisions to prosecute in these cases were taken by independent law officers applying evidential thresholds.
Who are the vicitms? The accused or the accusers?
No hierarchy of victims
In Northern Ireland there is a legislation which ensures there is no hierarchy of victims: A victim is “Someone who is or has been physically or psychologically injured as a result of or in consequence of a conflict-related incident” (The Victims and Survivors (Northern Ireland) Order 2006 Section 3(1)(a).
The proposals of the British government will create a hierachy of victims (already in place regarding the eligibility criteria for the ‘Troubles’ Pension).
The Statute of Limitation proposals from the British government will create a de facto amnesty for perpetrators of Conflict-related criminality. Will this limitation also apply to state agents and informers employed by the British security forces? Will this limitation also apply to Republican and Loyalist paramilitaries who remain alive?
Whether these proposals violate the UK’s obligations under the ECHR seems of little consequence to the British government. HMG is intent on ‘reviewing’ the Human Rights Act 1998 and intends to limiting access to Judicial Review, as announced in today Queen’s Speech. Judicial Review is the legal application to challenge Executive decision-making. Judicial Review is a mechanism by which human rights concerns can be bought before the independent judiciary and which has been used extensively in Conflict-related Legacy litigation in Northern Ireland.
Retribution not core demand
One of the consequences of the process of truth-recovery can be a demand for retribution.
But that is only one consequence of the process and it is not a core demand for the majority of relatives of victims and survivors. Their demand is to know why and to know who – who was responsible, who was liable, who was guilty, who gave the order?
Another consequence is that if a crime was committed, and the evidential threhold for prosecution can be established, then the Rule of Law must be seen to give due process to the criminal justice system.
Hard Law, Soft Justice: in reality, as time passes, memory fades, evidence disappears, witnesses die, redress (in whatever form) is transmitted between generations (and with transgenerational trauma), the probability of conviction decreases. The value of retribution by way of conviction and sentence is minimal and, as I have noted, not the primary demand of victims.
What the proposals of the British government will achieve if legislated for
(in addition to contravening the ECHR and fomenting the wrath of the administrations in Dublin and Washington) will be a further undermining of the GFA, a further boost to the idea that there is a hierarchy of victims and a further inflammation of the wound for those who know there is a truth that must remain hidden, despite every dog on the street knowing what it is.
The views expressed in this piece are those of the author and not those of KRW LAW LLP, Belfast where he is a litigation consultant.