London's Proposals to Bar Access to Justice Rejected
27 September 2021 Al Jazeera (By Anne Cadwallader, PFC Staff) | 27 October 2021
The Northern Ireland ‘amnesty’: Hiding Britain’s ‘misdeeds’?
A proposed sweeping amnesty that would stop all investigations into crimes committed during the Troubles, including those by the British military, threatens to thwart the pursuit of truth and justice for victims’ families.
History shows that whenever protracted conflicts end, bereaved families are invariably left with questions. “Who shot my father?” “Why did my mother die?” “Why did it start?” and “Who was to blame?”
Communities emerging from bitter conflict also want and need to understand how to prevent it recurring. How can a divided community look to the future if it cannot agree at all about its past?
Those questions are vital to sustaining any deal, anywhere, that brings warring parties together to reach agreement. Resolving, or trying to resolve, the legacy of conflict is an integral part of peace-making.
‘A wall of silence’
In what is often called “The Troubles” in Northern Ireland, more than 3,500 people died between 1969 and the April 1998 Good Friday Agreement peace accord between the Catholic community, who mainly wish for an independent, united Ireland; the Protestant community, who mainly wish to remain part of the United Kingdom; and British state forces.
British soldiers behind a barbed wire barricade in Derry, Northern Ireland in August 1969 [File: Peter Kemp/AP Photo]
London’s rule in Northern Ireland continues but, although all parties to the conflict are on record as wishing victims’ questions answered, the British government has unilaterally decided to dispense with any post-conflict search for truth.
The proposal for British state impunity continues a pattern and mirrors this year’s “Overseas Operations (Service Personnel and Veterans) Act” that has blocked investigations into alleged British human rights violations in Iraq and Afghanistan.
Like that Act, the latest plan amounts to a sweeping amnesty for London’s own military and security services who, some would argue, have most questions to answer (as do paramilitaries from both camps).
The proposals would close down all current and future inquiries including:
- Inquests ordered by the attorney general for Northern Ireland on the basis of new evidence
- Civil actions for compensation against the Police Service of Northern Ireland (PSNI, as legal inheritors of liability for the Royal Ulster Constabulary), the British Ministry of Defence and the Northern Ireland Office
- Prosecutions where the independent Public Prosecution Service for Northern Ireland has deemed charges are in the public interest and a conviction is possible
- Investigations by the Police Ombudsman for Northern Ireland, even where there is “grave and exceptional” evidence of wrong-doing
- Investigations passed to the Legacy Investigation Branch of the PSNI (which would be abolished under the proposals)
The people who would be affected are, for example, the family of Sean Brown, a 61-year-old father of six children, who was abducted on the evening of May 12, 1997. The Police Ombudsman recommended a new inquest and, since 2014, the British Ministry of Defence and Police Service of Northern Ireland have refused to disclose documents related to the murder although the family has evidence of collusion with the Royal Ulster Constabulary (RUC).
A confrontation between British soldiers and Catholic youths in the Andersontown District of Belfast, Northern Ireland, in August 1972 [File: AP Photo]
And the family of Kathleen Thompson, a 47-year-old mother of six, shot dead by a British soldier while standing in her garden. A new inquest into her death began in 2018 but has been frustrated by a “wall of silence”. The proposed legislation will end all inquests.
Or the families of six men, shot dead in 1973 by British soldiers in the New Lodge Road area of Belfast. A new investigation was ordered after the original was ruled inadequate. This investigation is also now at the mercy of the proposed legislation.
Potentially, it could even include the Reavey family who the Police Ombudsman informed, just this week, that a file on a former serving RUC man with evidence of his involvement has been sent to the Public Prosecutor. The three young Reavey brothers, Brian, John-Martin and Anthony, were gunned down in January 1976 as they watched TV in their modest home in County Armagh.
Having waited nearly 50 years for justice, they too could find it snatched from their hands.
A ‘betrayal of victims’
The British proposals have prompted unanimous condemnation from all sides, in a rare show of political unanimity, both in Ireland and internationally – leaving London isolated as the proposals’ sole defender.
The British government has lauded its own approach as “conciliatory” – but no group involved in the conflict; no political party represented at the power-sharing assembly in Belfast, no victims’ group and no human rights organisation agrees. Neither does the Irish government.
This universal condemnation has been led by, among others, two United Nations rapporteurs who say the proposals are a “flagrant violation of [London’s] international obligations” and would foreclose “the pursuit of justice and accountability for the serious human rights violations committed during the Troubles” and thwart victims’ rights to truth and effective remedy.
British soldiers in a city street in Belfast, Northern Ireland, in July 1972 [File: AP Photo]
By trying to bury the truth, they all say, London will prolong division, break the hearts of hundreds of families and delay any hope of reconciliation.
Amnesty International has also waded into the row, calling on the UN Human Rights Council to challenge London’s plans as “an utter betrayal of victims” that “not only breaches the UK’s international and domestic human rights obligations, but unduly interferes in our justice system and undermines the rule of law”.
“We cannot allow those responsible for murder, torture and other grave human rights violations to be placed above the law and beyond accountability.”
The British government, in response, states the purpose of its proposals is to fulfil an election manifesto promise to end prosecutions of former soldiers currently facing court hearings.
London has characterised any court action against its military as a “witch-hunt”, claiming the soldiers have already been cleared of the illegal use of lethal force. This, however, ignores the practice (from 1970-1973) of barring the RUC from questioning soldiers under what was called an “RUC Force Order”.
The order meant that any soldier who killed while in uniform was not questioned, as normal, by the police but by another arm of the British Army – the Royal Military Police. The process, it was admitted even at the time, was solely for managerial purposes (sometimes called “tea and sandwich interviews”), not as part of a criminal investigation.
The bereaved families and lawyers for those killed, therefore, argue that there never was an investigation compliant with Article 2 of the European Convention on Human Rights (ECHR), to which Britain is a signatory, which stipulates inquiries must be effective and independent.
British soldiers and Catholic youths confront each other after the British Army occupied an area of Andersonstown in Belfast, Northern Ireland, in 1972 [File: AP Photo]
The extent of the effective amnesty afforded to the British military, even as early as the mid-1970s, is evidenced by the huge pay-outs made to families at the time. More than 400 out-of-court settlements were made amounting to more than six million pounds (in today’s money – more than $8 million) where otherwise, it was expected, a soldier would be found guilty in court. Only four uniformed soldiers were ever convicted of murder, although they killed more than 300 people. Britain allowed all four convicted murderers to return to their regiments.
This protection of soldiers from police questioning was described in court earlier this year as an “appalling practice … designed, at least in part, to protect soldiers from being prosecuted and [which] in very large measure … succeeded.”
Hiding Britain’s ‘misdeeds’
The proposals mirror London’s own view of itself as a neutral arbiter in the Northern Irish conflict, remaining above the fray, motivated by an altruistic desire to encourage peace and reconciliation between the warring factions.
This self-image has been seriously challenged by a series of court cases, inquests, ad hoc inquiries and research carried out by lawyers, journalists and the bereaved families themselves which show that, despite the passage of time, significant new information can still be found both to console grieving families and expose criminal behaviour.
That has led many to ask if the real reason for closing down all paths to justice is London’s desire to draw a curtain over the past to hide its own covert misdeeds.
Labour MP and Northern Ireland Shadow Secretary of State Louise Haigh is shown the location where some of the Ballymurphy massacre victims were shot [File: Charles McQuillan/Getty Images]
One of the most damning outcomes of recent work by human rights activists, families and lawyers was a verdict on what has become known as the “Ballymurphy Massacre” – named after the predominantly Catholic West Belfast working-class housing estate where 10 people (including a Catholic priest and a mother of eight children) were shot dead across three days in August 1971 by members of the 1st Battalion of the British Parachute Regiment.
Although, at the time, all the dead were labelled gunmen, in May this year an inquest found all 10 were “entirely innocent of any wrongdoing on the day in question” and the use of force was unjustified and in breach of the ECHR.
A botched apology from the British prime minister, Boris Johnson, was rejected by the families who are now embarking on civil legal actions and seeking an authentic apology.
The British proposals are to end all judicial activity on “Troubles-related conduct across the spectrum of criminal cases, and current and future civil cases and inquests”. There is no ambiguity – London proposes to close down every possible avenue to truth and justice.
Murder weapons in museums
Another vehicle used by families to uncover the truth is civil legal action. Although technically a device for seeking financial compensation, most families use this process to uncover documentary evidence previously withheld from them in state archives.
A British soldier, and residents of Alliance Parade, Belfast, Northern Ireland, examine the remains of a car bomb which severely damaged their homes in Belfast on July 14, 1972 [File: Peter Kemp/AP Photo]
In one such case, the shooting dead of five people at a betting shop in 1992 on Belfast’s Ormeau Road, an inquiry carried out by the (now defunct) Historical Enquiries Team (HET) told the victims’ families that one of the murder weapons used in the attack had been “disposed of”. It was later discovered on display in the Imperial War Museum in London.
The families then took a civil action whereby the existence of significant new material was (inadvertently) disclosed by the PSNI that had earlier been withheld from the both the HET and the Police Ombudsman investigations, despite the latter having full police powers of search, seizure and right to access intelligence information.
Nevertheless, in other cases, the Ombudsman has been able to obtain truth for families. In July 2021 the office identified significant investigative failures by the RUC in relation to the 1993 murder of 17-year-old Damien Walsh as well as evidence of “collusive behaviours” by police such as a failure to share intelligence.
This report said police had “failed to capitalise on a series of significant investigative opportunities, including failing to arrest suspects, not conducting searches of their homes and failing to ensure that important forensic enquiries were undertaken”.
Although the HET has been disbanded, other ad hoc inquiries have been set up. One is “Operation Kenova”, led by former British chief constable, Jon Boutcher. His work began with an inquiry into claims a double-agent within the Irish Republican Army (IRA) was responsible for multiple murders.
The inquiry has now been greatly expanded and is investigating more 200 murders. Its work has been praised both by families and in an independent legal review carried out by barrister, Alyson Kilpatrick, who has benchmarked it with Article 2 of the ECHR.
One of the inquiries under the Kenova umbrella is into the murderous activities of the “Glenanne Gang” – permutations of which killed 120 people in the mid-1970s in what became known as the “Murder Triangle”. The gang included members of the British Army and RUC, as well as ruthless loyalist paramilitaries.
A loyalist mural in Belfast’s Mount Vernon estate [File: Charles McQuillan/Getty Images]
Among the attacks its members carried out were the May 1974 Dublin and Monaghan bombings, when four bombs were set off, three in the Irish capital, killing 34 people, including an unborn child – the worst single day’s toll of death in the entire conflict.
Judicial Review is another legal path used by those who believe either they, or their loved ones, were subject to the use of illegal force by the state. This gives the courts power to rule on the legality of both legislative and executive branches of government, which would include the police and military forces.
This avenue was used by a group known as “The Hooded Men”, who claimed they were tortured while interned-without-trial in the early 1970s. One outcome is a Belfast Court of Appeal ruling that the 14 men were subjected to treatment – hooding, sleep and food deprivation, prolonged periods forced against a wall on their toes and fingers, loud “white noise” and beatings, which “if it occurred today” would “properly be characterised as torture”.
The scene of the car bombing in the centre of Omagh, County Tyrone, Northern Ireland, in August 1998 [File: Paul McErlane/AP Photo]
Another judicial review led to a court ruling that the Omagh bombing of August 1998, in which 29 people, including a woman pregnant with twins, perished (the largest single death toll in any one explosion in the conflict) could have been prevented had the security forces acted on information received.
The judge recommended that both the British and Irish governments undertake human rights compliant investigations into the bombing. This will not happen if London’s proposals are implemented.
These prosecutions, civil actions, inquests, Ombudsman’s inquiries and other investigations show that it is possible to undertake valuable inquiries, even into events that occurred 50 years ago. There are, however, drawbacks.
A coffin of a child killed in the Omagh bombing in August 1998 [File: Ian Waldie/Reuters]
Replacing the ‘imperfect with the disastrous’
Many families bereaved in the conflict have not embarked on any journey to truth, by whatever avenue, either because they do not know how; fear publicity, or are reluctant to come forward. There is no standard or best-practice guide to ensure equality of treatment.
Most of those taking action, whether legal or otherwise, have found the process slow-moving, and psychologically draining. Fighting for disclosure through the courts can be expensive with no guarantee of success at the end of the road.
There is also no mechanism through which wider themes can be examined and lessons learned. Neither is there an over-arching oral history process to capture memories. With all its drawbacks, however, there has been forward movement – movement that the British government is now planning to curtail completely.
“Current mechanisms are deeply imperfect but the British government is proposing to replace the imperfect with the disastrous – no mechanism at all,” said Paul O’Connor of The Pat Finucane Centre (PFC). The PFC, for which I work, is one of several advocacy groups assisting families through the legal and quasi-judicial frameworks.
“It would be far better if each and every family was accorded the same quality of investigation – and that investigators have full police powers. They must also have the right to obtain all documentary material, whoever holds it, subject to the law and keeping people safe and secure”.
A Ballymurphy family member, Kathleen McCarry, the Sister of Edward Doherty, at Springhill Community House awaits the amnesty announcement as the TV shows Prime Minister Boris Johnson during PMQs on July 14, 2021 in Belfast, Northern Ireland [File: Charles McQuillan/Getty Images]
Mark Thompson of Relatives for Justice (RFJ), another advocacy group, accuses London of starving investigative processes of resources, making truth-recovery far more difficult for families. “The authorities routinely withhold information and obfuscate inquiries – then they say inquiries cannot work, ignoring the fact they are the main delaying factor themselves”.
The PFC has written to the Bar Council of Britain pointing out that one of its members, Secretary of State for Northern Ireland, Brandon Lewis, is promoting the proposals, despite the Council’s key principle of supporting the rule of law stating: “Everyone needs to be able to seek expert advice on their legal rights and obligations and to have access to skilled representation in the event of a dispute or litigation.”
The PFC lists the families of 14-year-old Annette Mc Gavigan, killed by a British soldier in 1971; 15-year-old Paul Whitters, killed by an RUC officer in 1981; 11-year-old Stephen Mc Conomy killed by a British soldier in 1982; 16-year-old Henry Cunningham, killed by loyalists in 1973; Sean Dalton, a father-of-six killed by the IRA in 1988; and Sean Brown, a father-of-six killed by loyalists in 1997, who have all been awaiting inquiries for decades.
The Good Friday Agreement
Both the PFC and RFJ – along with others – are planning campaigns to inform MPs in London of the dire consequences of passing the proposed legislation, should the British government bring it to parliament, unamended, later this year.
They are also lobbying Washington. Already the “Ad Hoc Committee to Protect the Good Friday Agreement” in the US has issued a letter to British Prime Minister Boris Johnson, urging him to withdraw the amnesty proposals.
Noting cross-community opposition, the Ad Hoc Committee said they had “carefully considered” the proposals, consulted with human rights groups, legal experts, victims and survivors, and had concluded the proposals are “at odds with both the spirit and architecture of the Good Friday Agreement”.
A bi-partisan group of 36 members of Congress have also sent a letter, strongly objecting to the proposals to the British embassy in Washington and further congressional and campaigning action is being planned for later this year.
100 percent amnesty
The most comprehensive de-bunking of London’s proposals came on September 7, from a team of lawyers based at Queens University, Belfast (QUB) and human rights activists at the Committee on the Administration of Justice who jointly produced a 69-page report concluding they “would not work, legally, morally or politically”.
A man walks past a mural at Free Derry corner as Bloody Sunday victims’ family members gather before making their way to Derry Courthouse as the first listing of the case against a British soldier took place on September 18, 2019 in Derry, Northern Ireland [File: Charles McQuillan/Stringer/Getty Images]
This group, known as the “Model Bill Team” was launched originally in 2015 at the House of Lords in London and has given expert evidence to the US Congress, Dáil Éireann (lower house of the Irish government) in Dublin, the Northern Ireland Select Committee and Defence Committee at Westminster and held dozens of meetings with interested parties.
One of the authors of the Team’s rebuttal of London’s proposals, Professor Louise Mallinder, an expert on international post-conflict amnesties at QUB, said the proposals were “sweeping” and “unconditional”. Pointing out that the European Court of Human Rights (ECHR) only allows for amnesties where they do not interfere with the right to truth or which prevent a return to conflict, she called London’s proposals “Pinochet plus”.
She also points out that, whereas Augusto Pinochet ruled Chile through an illegitimate military dictatorship, the UK proclaims itself a liberal Western democracy where the rule of law prevails, which has its own Human Rights Act, which is fully signed up to the ECHR and which has a permanent seat on the UN Security Council.
Her study shows that only 25 percent of 289 global-wide amnesties between 1990 and 2016 extended to state forces and only 37 percent were unconditional. Only 6 percent prevented civil court cases, none prevented inquests or other investigations and none has been granted 23 years after a peace agreement, as would be the case in Northern Ireland.
The South African Truth and Reconciliation Commission, for example, received 7,116 amnesty applications but only granted 1,167 full amnesties and 139 partial amnesties. London’s proposal is for amnesties to be granted in 100 percent of cases and those receiving them would not even have to apply.
London’s proposals would set up what it calls an “Information Recovery Body” (IRB) but this would only have powers to “take statements” from people with information and seek disclosure from British state agencies. There would be, as currently proposed, no sanction for those bodies or individuals who refused to comply.
The proposed powers for the putative IRB would fall significantly short of the investigative powers of the Police Service of Northern Ireland and the Police Ombudsman, as well as the powers of discovery in judicial proceedings such as prosecutions, inquests and civil actions.
Moreover, as London is now proposing new criminal offences under the Official Secrets Act, it is entirely possible that the only people liable to prosecution for conflict-era matters could be either IRB staff; those providing the IRB with information, if they make unauthorised disclosures; journalists or state whistle-blowers.
Then British Prime Minister Tony Blair, then US Senator George Mitchell, and Irish Prime Minister Bertie Ahern, pose together after they signed the Good Friday Agreement on April 10, 1998 [File: Dan Chung/AP Photo]
While the proposals are undoubtedly capable of damaging confidence in the rule of law, they are also likely to damage public and political confidence in the Good Friday Agreement itself, the hard-won deal made in April 1998 and the cornerstone underpinning the peace process and power-sharing in Belfast.
The proposals breach the Agreement, in terms of its commitment to the incorporation of the ECHR into domestic law; in terms of the devolution of justice powers to Northern Ireland and in overturning the right of direct access to the courts to challenge alleged breaches of the ECHR.
London cannot say there are no alternative options. There have so far been at least three proposals, all reached only after extensive consultation with victims and the political parties. The third proposal, still theoretically on the table, is the Stormont House Agreement (SHA) – a comprehensive political treaty signed by four of the five main parties, and the Irish government.
This proposed a set of three differing institutions whereby the public, and specifically victims, could seek truth and justice through both judicial and less formal investigative actions. It amounted to a form of truth-recovery process which, while unlikely to result in criminal prosecutions, left the door open.
One body would have had police-type powers, capable of robust investigation. Another body would have been responsible for an innovative process by which families, privately and voluntarily, could have engaged in a confidential interlocutory channel with those who were responsible for their bereavement.
More than 16,000 responses to these proposals were received during a statutory consultation process – but despite a majority being generally in favour of the proposals, London has to date failed to implement them in law and is trying to scrap the SHA that it brokered itself.
‘Fighting for the truth’
Meanwhile, those families who have been seeking the truth, sometimes for more than 50 years, are left hanging.
The most disturbing outcome of London’s proposals, should they be implemented, is that the failure of community cohesion in Northern Ireland – the continuation of sectarian tensions – will not be addressed and resolved, even slightly.
Nationalists and loyalists riot at the Peace Wall interface gates which divide the two communities on April 7, 2021 in Belfast, Northern Ireland [File: Charles McQuillan/Getty Images]
Legacy issues continue to poison the political atmosphere. If a society cannot agree at all on what happened over the past half-century, or even begin to examine it, how can it hope to build a truly peaceful future?
Then there is the outcome for all the individual families who suffered most and who are struggling to come to terms with their loss, together with the effects of intergenerational trauma – depression, addiction, lack of self-esteem, low aspirations.
Sandra Peake, of the cross-community “WAVE” organisation, which advocates for victims, said, “To tell people who have suffered unimaginable grief and trauma that what happened to their loved ones is no longer of any interest to the state is perverse and obscene.”
Tracey Mulholland is the 42-year-old granddaughter of Arthur Mulholland, who was shot dead in County Tyrone in February 1975. An HET review found evidence of both police and military involvement in his murder, but the family is still waiting for official acknowledgement of the state’s role.
Her loss is one of the 120 murders currently being reviewed by the Kenova team under Jon Boutcher which may be curtailed if London gets its way. Her anger is shared by hundreds of other families.
“The politicians at the power-sharing Assembly should walk away,” she said. “London clearly takes no notice of what our elected politicians want.”
“Most people could live with an end to prosecutions, but they will never give up the battle for truth. We have seen people die fighting for the truth and being blocked time and time again,” Mulholland told Al Jazeera.
“My entire life I have been fighting for the truth and I am not about to give up now.”
Ballymurphy family member Irene Connolly, the daughter of Joan Connolly, reacts as she watches the Northern Ireland amnesty announcement by the Northern Ireland Secretary, Brandon Lewis, on July 14, 2021 [File: Charles McQuillan/Getty Images]
The small number of legal firms in Northern Ireland who specialise in these “legacy cases” are certain that the UK government’s proposals breach the European Convention on Human Rights – but it will take years of litigation in the courts to establish this legally.
Meanwhile, ageing relatives – who have waited decades to be accorded the respect of being told the truth – will die without any resolution of the questions that have tormented them.
They will fight the proposals. One bereaved relative put it simply, on realising their significance, “They treated us as second-class citizens in life – we won’t let them do the same in death.”
The question remains, will the proposals be implemented against the wishes of bereaved families, victims’ groups, human rights organisations, lawyers, international bodies, the Irish government, all the Northern Ireland political parties and the Labour Party opposition at Westminster?
Will the British government, with its majority of 80, trample over every other conceivable interest and enforce its will despite being warned of the potentially tragic outcome?