In an opinion piece, published in the Irish Independent and Belfast Telegraph, The Lord Caine challenges the Irish Government on legacy issues
Just over nine years ago, on 23 December 2014, eleven weeks of political negotiations that included the UK and Irish Governments and the five main Northern Ireland parties concluded with what became known as the Stormont House Agreement. The Agreement was, we believed, a considerable achievement, covering a wide range of issues, including, of course, legacy. The finance provisions almost certainly averted the collapse of the Northern Ireland Executive.
As Special Adviser to the then Secretary of State, I participated in all eleven weeks of those talks. I am, therefore, somewhat perplexed at the retrospective recasting of the legacy provisions of the Stormont House Agreement as having near universal support and constituting an “agreed” way forward to deal comprehensively with the past.
Even in December 2014, the legacy proposals did not have the backing of all parties – the Ulster Unionists rejected them outright, while the SDLP regarded them as a dilution of previous proposals. Recognising the difficulties of taking the proposals through Stormont, I recall the First and deputy First Ministers persuading the then Secretary of State to legislate at Westminster, even though the proposed new institutions were technically devolved.
Commitments to do so subsequently appeared in the Conservative manifesto at the 2015 General Election and in the Queen’s Speech that followed. It cannot be stated strongly enough that there was no lack of commitment on the part of the UK Government to deliver on the Agreement. To that end, we also established a Stormont House Implementation Group, “the Shig”, to try and maintain a degree of consensus with the parties.
Ultimately, however, as we tried to convert the small number of paragraphs on legacy in Stormont House into detailed legislation, the fragile consensus we thought we had achieved began to evaporate. Martin McGuinness, on behalf of Sinn Féin, vetoed efforts by the then Secretary of State to include substantive commitments on legacy in the Fresh Start Agreement of November 2015.
Instead, the final text of that Agreement stated, “While progress has been made on most aspects of the legacy of the past, we have been unable to agree a way forward on some of the key issues.” This led the Victims and Survivors Forum to agree a rare statement expressing concern that victims of the Troubles who had “suffered the most” had now been “forgotten once again”.
A key concern of a number of victims’ groups in Northern Ireland focused on the role of the Irish Government under the Stormont House proposals. Unlike the UK Government, there were no commitments of any kind by the Irish Government to pursue criminal investigations into Troubles-related incidents within its own jurisdiction. This was despite the cross-border element of so many atrocities during the Troubles.
In fact, the only significant commitments made by the Irish Government, and which were the only parts of Stormont House that were the subject of an international agreement, were to establish jointly a body designed to encourage information recovery by enabling individuals to come forward secretly to reveal what they had done. Information recovery is, of course, at the centre of what will be delivered through our Legacy Act.
Despite these setbacks, the UK Government continued to seek to break the deadlock, particularly through the consultation we launched in 2018. While the consultation responses revealed some support for the broad architecture of Stormont House, on the details they raised more questions than answers. It also revealed concerns that people would never co-operate with an information recovery process while the threat of prosecution remained.
All of this led me, in October 2019, after I had left my role as a Special Adviser, to reflect publicly that the legacy proposals in Stormont House were close to requiring life support. In February 2020, the DUP said that the Agreement was not acceptable and needed revisiting. At different times after the Agreement, therefore, the two largest Northern Ireland parties expressed real concerns about the Stormont House mechanisms.
As a result, since early 2020, the UK Government has sought to put in place structures designed to provide more information to victims and survivors of the Troubles, against a background of the likelihood of successful prosecutions being vanishingly rare, and a realistic assessment of what can be delivered a quarter of a century after the Belfast Agreement and over fifty years since the Troubles began.
In many respects our proposals include, and build upon, Stormont House: an independent body capable of conducting criminal investigations; the ability to refer cases to prosecutors where individuals do not co-operate or seek to mislead; full disclosure by the UK Government; effective information recovery; and measures to promote oral history and reconciliation.
I am the first to acknowledge that some parts of the Act are challenging, particularly the conditional immunity elements. As a result, however, of the many changes we made during its legislative passage, I am confident that it is capable of delivering more answers, to more people, more quickly than is possible under current structures - or those envisaged nine years ago. We do not expect this to be an entirely comfortable process for anyone.
I regret that, in our efforts over the last three years, we were unable to find more common ground with the Irish Government, not least as its own approach to troubles-related prosecutions has appeared to recognise the dilemmas we have had to confront.
Rather than focusing on legally challenging the UK’s Legacy Act in Strasbourg, perhaps it is time for the Irish Government to reflect on how it might now answer legitimate questions about its own role in dealing with legacy issues within its own jurisdiction.