Austen Morgan is a barrister at 33 Bedford Row. His next book, ‘Pretence: why the United Kingdom needs a written constitution’, is to be published later this year.
‘All change: all change!’? On 7 July, during the flight of the ministers, Shailesh Vara MP returned to the Northern Ireland Office (NIO), this time as secretary of state. And on 5 September, Liz Truss could become the new prime minister to replace Boris Johnson.
This summer, Vara – a solicitor – may well review his department’s principal legislative commitment, the Northern Ireland Troubles (Legacy and Reconciliation) Bill; this passed the commons on 4 July, and is due to have its second reading in the lords on 13 September.
It is not controversial in Great Britain, Tory MPs trusting the Government to finish its work in defence of veterans.
During the Troubles (1968-98), some 3,750 people were killed: 60 per cent by republicans; 30 per cent by loyalists; and the remaining 10 per cent by the state (soldiers more than police).
It is believed that Vara’s junior ministers – Conor Burns MP and Jonathan Caine – would welcome a revision of legacy policy, though perhaps for different reasons.
Conor Burns (the companion to Lady Thatcher until her death in 2013) may yearn for the Johnson-approved policy initiative by Brandon Lewis on 18 March 2020, when the Irish government – we now see – was excluded from Northern Ireland policy, and the roof did not fall in.
Lord Caine is facing the informal lawyers’ and judges’ party in the lords this autumn. Some of its members may accept briefs from the new establishment in Northern Ireland: the NGOs, academics, and human rights community, promoting lawfare premised on their transitional justice concept.
This involves the 60 per cent of republicans continuing to benefit from a de facto amnesty; while aged and often ill military veterans are prosecuted for historic killings (the 30 per cent of loyalist terrorists being shifted increasingly to the state camp with the dubious – and non-legal – concept of collusion).
The Malone House Group (of which I am a member) – a NGO recognized at Strasbourg – supported Lewis’s direction of travel, even though we had criticisms of the Bill when it appeared in May 2022. We gave evidence to the Northern Ireland affairs committee in the Commons on 15 June 2022.
We were ranked against the five-party coalition at Stormont, which failed to implement any legacy policy when it had the responsibility, and, at Westminster, has been simply anti-government: the DUP’s client victims are not the SDLP’s and vice versa; while the Alliance Party of Naomi Long represents the NGOs and quangos rather than a democratic, non-sectarian third way.
The NIO could usefully think about the following three big ideas, with a view to introducing government amendments in the Lords and greatly improve its bill.
First, giving the Operation Banner veterans of 1969-2007 the same protections as provided for in the Overseas Operations (Service Personnel and Veterans) Act 2021. This was the project of Johnny Mercer, who fell out with Boris in April 2021. The Act came fully into force in June 2021.
As a backbencher, Mercer helped the Government get its legacy bill through the commons, even though Northern Ireland veterans applying for immunity was legally different. Then, also on 7 July 2022, he returned to government as an enhanced minister for veterans’ affairs in the Cabinet Office (not the Ministry of Defence).
Second, turn the common law on Article 2 procedural (of the European Convention on Human Rights) into statute law. This needs explaining – and the suspension of disbelief.
During the Troubles, article 2 substantive (right to life) was violated by the United Kingdom (UK), because the state failed to protect its people from republican and loyalist terrorism.
Then, in 2001, Strasbourg invented article 2 procedural, which has turned out to require the UK to implement retrospectively expanding standards of investigation for – not all Troubles-deaths – but the ten per cent of state killings.
(If you want to know why Dominic Raab, the Lord Chancellor, is keen on a UK Bill of Rights, look no further than these procedural breaches by the state on top of the substantive breaches – when no responsibility, legal or moral, is foisted upon terrorists.)
Then, on 15 December 2021, the Supreme Court, in case called McQuillan, firmed up an idea that a person could only access Strasbourg rights in domestic law through the Human Rights Act 1998, which entered into force on 2 October 2000.
This decision despatched a torrent of case law, particularly in Northern Ireland, about state bodies never meeting the increasingly exacting standards of Strasbourg. There could be no more so-called non-article-2-compliant cases for deaths before 2 October 2000.
Parliament should now simply legislate this ‘McQuillan rule’, in the process affirming respect for the judicial branch of government after the Brexit fallings out. It would also strengthen the rule of law in Northern Ireland.
But there are two lesser problems, which Parliament could tackle if the Supreme Court does not do so in time.
First, the Supreme Court applied a Strasbourg ten-year rule to push back the date to 2 October 1990. Second, the late Lord Kerr – in Finucane’s case in its 2019 reprise – added another two years (not without judicial controversy), to embrace solicitor Patrick Finucane’s murder at the hands of loyalists on 12 February 1989.
And third (going back to the Bill), the Government could cut through the Gordian knot: the Independent Commission for Reconciliation and Information Recovery (ICRIR).
This is to be the immunity granting body. But reconciliation (understood as peace in the Belfast Agreement) and information recovery are contradictory objectives.
As things now stand, it is veterans who will need the ICRIR the most. The IRA is likely to boycott the body, but the legacy practitioners will supply victim applicants targeting state forces and loyalist colluders.
It is time – with the twenty-firth anniversary of the Belfast agreement approaching – to do what Andy Burnham did in Gordon Brown’s government in 2009-10 regarding the 1989 Hillsborough stadium disaster in Sheffield: he released the documents to a publicly-appointed independent panel, with all human rights (not just article 2 procedural) properly protected and the focus on information recovery.
That would require the shutting down of all criminal and civil litigation in Northern Ireland. But the relatives – with or without the rewriters of history – would get, by reading the files, as humanly close to the truth as it will ever be possible to do.
Legislating in an amended bill for ‘Operation Banner’ equivalence, the McQuillan Supreme Court rule, and the release of the documents, must surely be a more attractive proposition for a new conservative prime minister in the autumn than pressing on with the status quo.