Ian Acheson is a visiting Professor at Staffordshire University and is Senior Advisor to the Counter Extremism Project.
The current system of dealing with the recent past in Northern Ireland has proven shockingly bad at delivering justice for thousands of victims and their families.
They have seen no accountability delivered, watching in horror as perpetrators are recast as victims and heroes.
And the new proposals which Chris Heaton Harris recommitted to last week – an effective amnesty for terrorists and security forces – will be much worse.
Criminal justice can deliver, eventually. Last week the relatives of 16-year-old Aiden McAnespie got some measure of this when a former British soldier was convicted of his manslaughter by gross negligence nearly a quarter of a century after he was killed at a County Tyrone border checkpoint.
I mention this rare exception because a relative of McAnespie wrote to me over a year ago to take me to task for what they saw as my ‘selective’ take on Justice for terrorism victims on social media.
I have certainly sought to draw attention to the disproportionate numbers of victims of Republican terrorism for whom no arrests or convictions have ever delivered any form or justice or closure nor are ever likely to. I do not apologise for this, but highlighting their plight routinely brings down a tsunami of invective from supporters of the IRAs political descendants, Sinn Fein.
In these cases we are normally required to shut up for the sake of the peace process.
Even if there was any appetite to bring to justice perpetrators whose handiwork would not be out of place today in Bucha or Mariupol, the most they would get on conviction for pre-1998 attacks is two years in prison. Such was the grim calculus on which Northern Ireland’s semi-skimmed peace was constructed via the Belfast Agreement.
I’m glad McAnespie’s family have made the justice system work for them. He was an innocent man who did not deserve to die. We rightly expect our security forces to operate and be held accountable to higher standards than the violent extremists trying to murder them, on or off duty. That’s the nature of a democracy. The rule makers keep records.
For too many other people though, there is a vanishing chance that this sort of closure will be achieved.
Loyalist terrorists who committed atrocities while the Troubles were running hot were frequently hunted down and rightly banged up by the police and security services. Their republican counterparts committed countless similar crimes but have evaded accountability on a far more frequent basis.
This inbuilt disproportionality perpetuates grief and pain, fuels intergenerational sectarianism, and is no basis for a reconciled future.
Meanwhile, legions of human rights activists pursue relentlessly state actors who were collectively responsible for only around ten per cent of Troubles deaths – many of those completely justifiable, such as the interception of IRA death squads – but show no enthusiasm for pursuing the perpetrators of republican and loyalist atrocities.
What little activity there is will be brought to a juddering halt by the latest iteration of the draft legislation produced by the Northern Ireland Office.
The new proposals are Based on a 2021 Command Paper, Addressing the Legacy of Northern Ireland’s Past. In a dispiriting era of sloppy policy and awful drafting this chiselling apologia took the biscuit.
It proposed a three-legged stool of measures: to end the logjam of civil and criminal litigation connected to the Troubles, to create a truth gathering body to replace procedural justice and, finally, to impose a statute of limitations to be applied to terrorists and security forces that would rule out any further routes of redress for crimes committed by them before 1998.
These proposals have slid well beneath the waves of successive crises and political upheavals that overtook its original author, Brandon Lewis and then successive Conservative administrations. But there has been little improvement to the plan, which amounts to a surrender to violent extremism.
I got involved in the evolution of these proposals not because I had any faith in their moral or operational basis, but because I thought at the time they were inevitable and that improvement was better than indignation. I was wrong.
With the help of Matthew Jury, one of this country’s leading human rights lawyers with long experience and success in representing those hurt by terrorism , I presented these ideas to Lewis at last year’s party conference, and latterly with Northern Ireland Office officials in London.
Our principal objection to the draft process was the extraordinary and inexcusable omission of any tangible consequence for alleged terrorist perpetrators who were in some way to be enticed into the truth recovery process.
The idea of perpetrators voluntary coming forward to explain to some commission behaviour which would have seen them indicted at the Hague had they actually been soldiers struck me as completely delusional.
What possible incentive would, for example, the IRA murderers of Patsy Gillespie have to come face to face with his wife to explain why they chained him to a bomb and forced him to drive into an army checkpoint with no possibility of escape, resulting in his death and that of five soldiers?
It’s sadly more conceivable that perpetrators would use the useful idiots involved in a truth recovery theatre to retraumatise the families of their victims with spurious justifications. Anyone who doubts this has not adequately grasped how deep run the wells of hatred that fuelled all paramilitary violence.
In fairness, the Bill has been amended (albeit only after being mauled in the Lords). The newly-styled ‘Independent Commission for Reconciliation and Information Recovery’ would now be able to conduct criminal investigations. Anyone who did not cooperate with the commission, and was later convicted of a Troubles-related crime, would serve a full sentence.
It’s not clear how this pretty toothless commitment, which directly contradicts the idea of amnesty, could fit into legislation- and as we’ve seen, the energy and resources to investigate Troubles crime has all but drained away.
My worry is that the hazy possibility of criminal action, where this has failed in the past and a lack of clarity over what ‘co-operation’ actually means, would convert criminal accountability into a happy-clappy cul-de-sac to the benefit of Troubles revisionists, bureaucrats, lawyers – and nobody else.
Jon Boucher, the chief constable who has led a high-profile police investigation into a series of Troubles murders, may see years of patient investigation fall into the abyss these proposals create. In his latest update, he’s sent 33 files to Northern Ireland’s Public Prosecution Service. Will they simply be archived?
In the end, these legacy proposals even in their new iteration, with their putrid amnesty clause and weak enforceability, were not introduced to address the real pain of Northern Ireland’s legions of unquiet dead and their living, suffering survivors. They are to deal with a mainland political headache, namely the vexatious prosecution of British soldiers who had served in the Province.
There is probably nowhere else in the United Kingdom where this shabby, universally-derided Bill would be contemplated. But as almost all observers of this shameful compromise would agree, this is the piece of Ireland that passeth all understanding.
I don’t regret trying to improve the Bill. But it is, after all, unimprovably bad.