There are clear deficiencies in the UK government’s most recent proposals for dealing with the legacy of Northern Ireland’s past, according to a new report published by the Model Bill team.
The report titled Prosecutions, Imprisonment and the Stormont House Agreement: A Critical Analysis of Proposals on Dealing with the Past in Northern Ireland reviews all of the proposals put forward on legacy in recent years, benchmarking each against binding human rights obligations, the Good Friday Agreement (GFA), and the Stormont House Agreement (SHA). The report is available to download here.
It is intended to offer a contribution to the ongoing deliberations of the UK and Irish governments, NI political parties, and civil society groups as they consider how to deal with the legacy of the past in Northern Ireland.
In recent years, there have been eleven distinct proposals on dealing with the past. All are examined in-depth within the report, including the latest proposals from the UK government, which were put forward in a statement delivered by the Northern Ireland Office (NIO) in March 2020 following the introduction of a Bill to set a five-year limit on the prosecution of members of the UK armed forces who have served abroad.
At the core of these new legacy proposals from NIO is the creation of an independent body to “conduct swift, final examinations of all the unresolved deaths”, and a commitment to ensuring that NI veterans receive “equal treatment to their counterparts who served overseas”.
The report finds that these proposals are not only incompatible with the European Convention on Human rights (ECHR) and the Good Friday Agreement, but are also incompatible with the Stormont House Agreement. This is despite the UK government reaffirming its commitment to implementing the SHA as recently as January 2020.
Professor Kieran McEvoy from the School of Law at Queen’s University Belfast leads the team behind the report. He said,
“The latest government statement appears to envisage the abandonment of the structures proposed in the Stormont House Agreement in favour of a process wherein the bulk of outstanding conflict investigations would be ‘fast-tracked’. It is difficult to see how such a process could amount to an effective investigation as required under Article 2 of the European Convention of Human Rights.
It is clear that a driving influence on the UK government’s approach to legacy in recent times has been a desire to ensure that British soldiers do not go to prison for conflict-related offences. An unhelpful narrative has arisen falsely equating attempts to prosecute British soldiers for such offences with a ‘witch-hunt’.”
The report addresses the ‘witch-hunt’ claims directly, examining the narrative against facts and figures from both investigations and prosecutions. On this basis, it concludes that the idea that conflict-related investigations or prosecutions could be legally described as ‘vexatious’ or ‘malicious’ is not intellectually credible.
Commenting on this aspect of the report, CAJ Solicitor Gemma McKeown said,
“The reality is that for some members of the current government, and some back-benchers, even one soldier being convicted and imprisoned for conflict related offences is one too many. It is that urge for impunity, dressed up as ‘witch-hunt’ that appears to be propelling government policy.”
Based on the analysis contained within the report, the authors conclude that the implementation of the Stormont House Agreement – something already agreed by political parties and both governments in 2014 – is the best way forward.
Professor Louise Mallinder of Queen’s University Belfast said,
“As we make clear in this report, our view is that implementing the Stormont House Agreement remains the best way to finally deal with the past in Northern Ireland. The alternative to this is quite simply further failure in delivering for victims and a continuing threat to confidence in policing. We reviewed a range of other options within the report, most of which are either clearly unlawful, or unworkable, or both.
Bearing in mind the government’s clear determination to keep soldiers out of prison, we have also reviewed a number of options which would see the Stormont House Agreement implemented in full - but where the current two year sentence before being considered for early release could be reduced to zero. In one version, the government would unconditionally reduce the two-year requirement to zero under its existing
powers contained in the Northern Ireland Sentences Act 1998. In the other, a reduction to zero would require engagement by the sentenced person with the information recovery element of the SHA. Both would be lawful in our view. We fully understand that many victims would want to see those who have killed their loved ones serve the two-year sentence before being considered eligible for early release.”
Dr Anna Bryson from Queens University Belfast concluded,
“It is time to finally make good on the promises made to victims and survivors on dealing with the legacy of the past. That can only be done by ensuring that families get the Article 2 compliant investigations to which they are legally entitled, and that the commitments made in the Good Friday Agreement and the Stormont House Agreement are honoured.”
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