Why any Attorney General veto over soldier prosecutions would reverse the justice reforms of the GFA – By Daniel Holder

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In the week of a Tory pledge to amend the Human Rights Act to impede legacy investigations into the security forces, it is timely to reflect that it is not the only such proposal floating around. With all the high drama at Westminster recently legislative developments on NI legacy have largely gone under the radar. The decision not to include a military amnesty in the bills listed in the ‘Queens Speech’ did garner coverage, less so the dropping of the Stormont House Agreement Bill from the same list.

There was also one day of high drama in the Stormont Assembly on the 21 October with a fleeting DUP move to return NI to a one party state and rush through a bill to block a Westminster law liberalising NI abortion legislation. The performance began with Paul Givan MLA waving detailed legal advice from the Attorney General John Larkin. The advice, that the Assembly could bypass its own usual procedures and push through Givan’s bill, had been received that same day in response to a request that was apparently sent the day before (a Sunday). The Speaker Robin Newton seemed unpersuaded by this apparent impressive 7-day 24-hr wraparound service from the Attorney and decided to stick to the Assembly’s existing rules, but not before considerable grandstanding on the issue.

The law that could not be stopped (far from trespassing on devolution) was consistent with Westminster’s explicit duty under the GFA to implement UK international human rights obligations when Stormont fails to do so (in this case a ruling on NI abortion law by the UN women’s rights committee, CEDAW). The abortion law reform, alongside marriage equality, had been added to the Westminster bill postponing a deadline for an NI Assembly election. Less noticed were two other amendments to this same bill that for the first time in legislation sought to progress a de facto amnesty for the security forces.

The legislation obliged the Secretary of State to issue a Report to Parliament on progress on restoring devolution. This duty was amended to include a range of other matters, including two provisions to ‘report on progress’ on limiting Troubles security force prosecutions.

The first duty was vague, seeking progress towards introducing a “presumption of non-prosecution” to protect “veterans of the Armed Forces and other security personnel” through a Statute of Limitations “or by some other legal mechanism”.

Despite officially supporting the Stormont House Agreement and opposing an amnesty all Tory and DUP MPs voting supported this amendment. Labour (minus Kate Hoey) and other MPs opposed. The vote carried by 308 votes to 228. A second, and much more precise, amendment on NI legacy cases then went through on the nod. This second duty was quite specific calling for “the Attorney General for Northern Ireland” to issue “new Prosecution Guidance” that would differentiate prosecution decisions on the basis as to whether the deadly weapon used had been lawfully or unlawfully “supplied” to the alleged offender.

Whilst the current NI Attorney General has voiced support for an unconditional amnesty, the Attorney General has no role in prosecutorial decisions or in issuing such prosecution guidance. Such a role was removed as a result of the reforms of the peace settlement. A cornerstone of the current reformed justice system is that prosecutorial decision making is vested in an independent Director of Public Prosecutions (DPP) and that prosecutorial decisions are made on the basis of the statutory Code for Prosecutors, issued by the DPP, not the Attorney General. This is not surprising given the role past Attorney Generals played in preventing the prosecution of soldiers. Look no further than the note of one 1971 meeting between Army HQ and the AG’s  office recording that:

“I have no doubt the Attorney General is doing all within his power to protect the security forces against criminal proceedings in respect of actions on duty.”

By contrast the GFA-mandated Criminal Justice Review recommended that “there should be no power for the Attorney General to direct the prosecutor, whether in individual cases or on policy matters.” This was implemented. The principle is also that the rule of law is now to apply to everyone. The current proposals for the Attorney General to issue prosecutorial guidance into conflict-related deaths would reverse such reforms of the peace settlement.

A further question arises as to why its proponents framed the language around whether the weapon was ‘lawfully supplied’ rather than explicitly singling out members of the security forces on duty. It is not clear if the scope of ‘lawfully supplied’ is only intended to cover service issue weapons to the RUC or Armed Forces, or also to seek to impede prosecutions in ‘collusion’ cases where informants within paramilitary groups were supplied with weapons by handlers (presuming such services still wish to try and maintain the fallacy such activities were ‘lawful’). For example, the Browning Pistol allegedly supplied by Special Branch that was then used in the 1993 Ormeau Road Bookmakers massacre.

The Attorney General confirmed to CAJ he was not currently preparing such Prosecutorial Guidance, nor does it appear there is presently a power for him to do so, legislation is likely to be required.

The Attorney General has however recently floated his own proposals for a separate process whereby the Attorney General himself or a Legacy Commissioner, would be able to make decisions to whether criminal investigations, prosecutorial proceedings, or inquests, would proceed in relation to the use of force by the security forces prior to the GFA.

The Secretary of State for his part issued his first ‘report on progress’ towards such Attorney General Guidance in September. Thankfully this poured a bucket cold water on the proposal, stating that under the justice reforms that followed the GFA the AG is “not able to either issue prosecution guidance to the DPP or direct the DPP to issue such guidance” and that the UK government had no plans to alter the roles or independence of the DPP and AG.

Whilst therefore this idea seemed to have been buried before it got off the ground, the election changes all that. An incoming hard right Government with military amnesty advocates in the ascendency could place this or other proposals straight back on the table.

The pledge to amend the Human Rights Act to prevent duties applying pre-2000 not only would tear up the SHA, but also breach the GFA which committed the UK to incorporating the ECHR into NI law with “direct access to the courts, and remedies for breach of the Convention” without any such arbitrary cut off date. It is increasingly evident that those promoting these proposals are at best ambivalent to the manner in which they reverse and tear up the justice reforms of the peace agreements.

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Daniel Holder is the Deputy Director of the Committee on the Administration of Justice (CAJ)

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