NIO Legacy Bill: A Blueprint for Burying the Truth and Impunity for Veterans? by Daniel Holder

The recent Whitehall legacy leaks to the London Times and Telegraph on the NIO’s proposed legacy bill undoubtedly had an element of (English) election day propaganda about them. The leaks appeared on the same day as gun boats were despatched to ward French fishers off Jersey fish. Yet these leaks contained the first hint of what government plans to do with regard to legacy since the Brandon Lewis’ Westminster Statement of the 18th March 2020 suddenly departed from the Stormont House Agreement. That unilateral move came just two months after his predecessor had promised to implement the SHA within 100 days as part of the deal to restore Stormont.

Further official detail has yet to emerge. Alongside the 11th May Queen’s Speech, No 10 published a 163 page ‘background briefing note’. This contained further details on almost every other one of the dozens of planned bills in the Queen’s Speech, except the NI legacy bill. The details were promised in ‘coming weeks’ but remain to be seen.The NIO, already under investigation from the Equality Commission for declining to release equality documentation from its original 2020 internal legacy bill process, and much criticised for failing to engage at all after the March 2020 statement, has finally begun to do so. Yet many questions remain unanswered.

One key issue is whether the ‘legacy bill’ will try to legislate to derail ongoing criminal proceedings. Needless to say, the British government directly interfering with cases before the courts, because it does not wish soldiers to be held accountable on murder and other serious charges, represents a fundamental attack on the separation of powers as well as the GFA devolution settlement. Another key question is whether the British Government also intends to make a fresh attempt to pull down legacy inquests to curtail the type of truth recovery recently witnessed over the Ballymurphy massacre. In addition, many families affected by Operation Kenova and other ‘called in’ investigations must be wondering whether the reports completed by Jon Boutcher and his team will now ever see the light of day or whether, like the reports of Stevens and Stalker before him, his work will be condemned to gather dust because it might expose too much.

Had the 2014 SHA been implemented at the time the legacy inquests programme would by now be completing its work. To recap, the SHA, as well as agreeing that legacy inquests would remain a separate process, was to set up a number of mechanisms. The Historical Investigation Unit (HIU) –a fully independent unit conducting police-type investigations with full police and disclosure powers– would also by now have completed much of its work. The Independent Commission for Information Retrieval (ICIR) an individual-case information recovery mechanism with immunities for statements (similar to the model used for the disappeared commission) and the Oral History Archive would also be well established.

This has not happened as the UK repeatedly reneged on commitments to introduce the SHA legislation, not least in its periodic answers to the Council of Europe’s Committee of Ministers as to how it would address European Court of Human Rights’ findings that conflict cases have not been properly investigated. The pattern has become clear. Having made the deal with the parties, repeatedly renewed promises to them, the Irish government the European Court and affected families that the legislation will be introduced, it has proceeded to intermittently consult, delay, procrastinate. It is a strategy of gaslighting in plain sight.

The key driver now of course is to protect British Army veterans and if that requires gutting the SHA then that is what the government plans to do. Brandon Lewis’ statement following this year’s Queen’s Speech openly pitched his new legacy approach as one that would “deliver manifesto commitments to veterans.”

It is worth noting that the Tory manifesto pledges were in fact quite limited. Non NI-specific reference was made to curtailing what are dubiously referred to as “vexatious legal claims that undermine our armed forces.” On the back of that, Ministers have already pushed through a Statute of Limitations for soldiers who served in places other than Northern Ireland under the draconian Overseas Operations Act (that was only belatedly amended to exclude torture, war crimes and crimes against humanity following a Lords rebellion and UN intervention). The narrative that there is a ‘witchhunt’ against the security forces in NI was debunked in a joint QUB-CAJ Model Bill team report and the Tory manifesto commitments on NI legacy in fact referred to providing “better outcomes for victims and survivors” as well as giving veterans “the protections they deserve” which you would hope, in a democracy, would be a pitch for continued due process rather than impunity.

Last month Brandon Lewis went on to boldly claim the objective behind the UK legacy U-turn was in order to find a way forward that “promotes reconciliation and focuses on information recovery, finding answers for families…” Such claims would be laughable in the context if not so serious.

It would be breathtakingly naive to take at face value the suggestion that the proposed new process is to focus on “information recovery” and “answers for families.” Indeed, it would appear more likely that the motivation behind the change of direction, beyond preventing the prosecution of soldiers, is really information concealment from families.

As regards the promotion of ‘reconciliation’, to believe that, you would have to accept the idea that a Government would wish to further ‘reconciliation’ through a solo run which involves tearing up a negotiated and victim-centred agreement that includes a treaty that had been concluded with another sovereign government, and develops instead alternative proposals in secret that are designed to give an amnesty to its veterans. In addition, it is telling that these proposals were leaked to two establishment newspapers on the evening of same day that the NIO met the Irish Government with whom the international treaty was concluded and yet they did not tell them.

The approach of this government smacks rather of the Vladimir Putin school of diplomacy. Yes we are lying. Yes, we know you all know we are lying. Yes, we know the lies are ridiculous. But we are going to do it anyway.

What can be missed in the current discussions is that the SHA institutions were always focused on information recovery – albeit ‘with teeth’ in the guise of an HIU with full police and disclosure powers including access to intelligence, powers of arrest, search, the right to seize documents, computers and so forth. There was broad consensus that the main product from the HIU investigative process would be its ‘Family Reports’ and that the HIU would lead to very few prosecutions. Any resultant convictions would be eligible for GFA early release, with the option of reducing time serves down to zero if the Government’s concern was really limited preventing soldiers doing jail time. The maintenance of the possibility of prosecutions was inextricably linked to ensuring effective HIU investigations.

In Westminster evidence on the experience of Operation Kenova John Boutcher stressed unfettered access to records as a ‘key pillar’ and ‘real challenge’ for any legacy investigation stating: “For a legacy investigation or process to be effective, it must actively search for relevant information rather than rely only on what material is readily accessible at the outset.” Even for Kenova with its powers and experience he testified there still had been “something of the battleships” to get hold relevant material from security agencies, but ultimately the team had been able to obtain records and information from PSNI, and access to MI5 and MOD records not given “to previous legacy investigations.”

He also reflected on the impact of systemic failure to disclose information to investigators as well as reflecting on the well-worn myth that it is ‘unfair’ to focus on records given only the security forces and not republicans and loyalists kept them- (in reality most of these official files consist of evidence about republicans and loyalists and they “rarely reflect wrongdoing by the security forces”). This is the experience of many – that a document trail regarding the actions of the State tending to be those that have gone ‘missing’ or ‘can’t be found’, with the State also actively closing files even on children killed by plastic bullets.

It was this raft of HIU disclosure and full police powers, and the element of compulsion, that was to give families the best chance of getting to the truth though an individual case model. The ICIR was to supplement this by providing for a process of voluntary information disclosure in a protected statement that could not be used in a prosecution. The OHA was also primed to make a powerful contribution to documenting broader patterns and themes by enabling a broad range of individuals to share their diverse experiences of conflict.

Yes, an all-powerful fully independent international Truth Commission with a full raft of unfettered legal powers, might well have a good chance of doing the same at a thematic level. However, the British Government was among the first to rule that out– and it is certainly not what it is planning now.

It should be recalled that SHA implementation was initially stifled by the NIO’s insistence on a ‘national security veto.’ By the time draft legislation was published it was quite clear what that meant. A power would be vested in the Secretary of State to redact out of HIU Family Reports any information relating to the role of informants and their handlers in the death of their loved one. Again, this was about information concealment, not recovery. A national security veto was also planned for the ICIR.

The NI legacy bill - as briefed to the Times and Telegraph - would contain a ‘Statute of Limitations’ to end all ‘prosecutions’ – and hence presumably the investigations that precede them. Instead “all sides would be encouraged to come forward to talk about historical events without fear of prosecution” to a legacy commission. Whilst the latter was already provided for by the ICIR – the intention is clearly to do away with the ICIR and HIU and let the legacy commission hear ‘all sides’ ‘talk’ about what happened. It is not clear, what independence or powers, if any, this legacy commission is to have, or whether it is to rely entirely on people and organisations who have spent years concealing information to suddenly pop in to volunteer it. It implies state agencies that have invested so much in obstructing access to documents even to the courts and investigators with disclosure powers, will now remarkably come forward and provide them with no compulsion to do so. Similarly, it suggests that those republicans and loyalists who supported the SHA, will happily trot along to instead volunteer information to a mechanism imposed and controlled by one protagonist that they have not bought into and whose output will no doubt be filtered through a raft of ‘national security’ vetoes that allow Ministers to censor its information to families. Of course, they won’t – but again the NIO simply doesn’t seem to care whether this is workable or not.

From the limited briefing to the Times and Telegraph it is not clear if there is an intention to empower the ‘legacy commission’ to look beyond unverifiable voluntary contributions to other sources. Turning back to the March 2020 statement what may be on offer would be a ‘swift examination’ in the form of a light-touch desk top review and virtually no real investigations. Such a review might get access to the easy stuff, but not the type of information you tend to need to get to the bottom of a case that can only be done by independent detectives working with full disclosure and police evidence gathering powers, as was envisaged for the HIU. In short, such a limited process is highly unlikely to recover much information for relatives in most cases, particularly if it is accompanied by shutting down all other routes, from inquests to Ombudsman and ‘called in’ investigations. Far from families finding answers there is a real risk some will receive incomplete and hence misleading information that provides no measure of resolution.

Its clear such a process is not going to be ‘Article 2 compliant’ in reference to the provision of the ECHR that requires that ‘investigations’ into such killings are both ‘independent’ and ‘effective’. It is also going to conflict with the international standards precluding impunity for human rights violations. We know we have a Secretary of State who is prepared to breach international law, so the question remains would that be taken a step further to knowingly legislate for mechanisms that will be unlawful under domestic law? Given as the ECHR is incorporated into NI law (though the Human Rights Act) on the back of the GFA, it would involve breaching the GFA to boot.

Clearly in such a scenario there will be a flurry of legal challenges, many of which are likely to prevail and force a return to the drawing board and legislative change. The most cynical interpretation would be that Ministers know this – but are also conscious that such a process could take years - facilitating yet more endless delay.

The NI legacy bill may or may not be imminent, but proposals are clearly being formulated. From what we have seen what is being proposed is some version of an amnesty for soldiers and non-state actors because the penny has dropped that there is no chance under international law that a ‘state-actor only’ amnesty would be lawful. That amnesty will be accompanied by the gutting of the SHA and possibly an effort to interfere with the running of the Inquest system which has proved its utility as a vehicle for exposing uncomfortable truths. The consequences for the rule of law could be catastrophic. The political impact will be highly destabilising. Victims will have been betrayed yet again. This is pretty shameless stuff.