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The Troubles cast a shadow over Brexit
December 2018 / January 2019


Since stepping down as DPP in 2017, McGrory has come up with a radical proposal. Tear up the government’s consultation system, end the political parties’ veto over agreement on a legacy process, and pass primary legislation suspending all legacy-linked civil and criminal court-based processes — including inquests. Retain the HIU, but switch its inquiries from criminal prosecutions into a new custom-made judicial process — working title, The Legacy Commission — staffed by judges.

Instead of HIU reports going to the DPP, they would go to the Legacy Commission with findings or recommendations about who or what was responsible for a death. HIU reports whose evidence fell below the civil standard (balance of probabilities) — which would be the vast majority — would be turned into written reports for families. The rest would go to a hearing, much like an inquest, where the presiding Commissioner would have the power to make findings concerning individual or collective responsibility. However, that finding would be the end of the matter with no appeal other than by judicial review.

This will win McGrory no friends among republican nationalist or Unionist politicians; all the more reason why their veto over breaking the stalemate should be removed. And, of course, so dependent on the DUP is the government that nothing is likely to change until the parliamentary arithmetic changes.

For any government, though, the attraction of McGrory’s proposal is that it would still be Article 2-compliant by providing an effective investigation process into conflict killings by the state. Punishment is not a condition of Article 2 compliance. It would also be much cheaper in the long run because the process would be finite and would end the spectacle of old soldiers — possibly old police officers too — going to prison.

For the former combatants, the absence of any criminal sanction might incentivise some to come forward to the ICIR to unburden their secrets. With more soul-baring, hopefully there would come the start of tangible reconciliation because they would set an example. “My fear,” says McGrory, “is that if we continue to try to shoehorn the legacy problem into the justice system, we risk self-destruction.”

McGrory is right. A genuine peace process cannot also be a police process that continues until the last soldier and terrorist die. Ending the police process offers the only realistic path to peace and reconciliation.

Thanks to Brexit, the legacy clock is ticking, for Brexit has revived old enmities, however much Brexiters may wish to downplay this. Anything that re-emphasises the border — which Brexit does — reawakens the tensions over identity and provides a rallying point for republicans, dissidents and non-dissidents alike. In the 1970s, I saw at first-hand how the border strained Anglo-Irish relations to breaking point, and the nonchalance with which the most ideological Brexiteers have casually airbrushed the border’s toxic history is, to me, quite bewildering, as it is to the PSNI Chief Constable. “For those that say we or others are overplaying the border for Brexit in policing terms — they’re simply wrong,” he says. Brexiteers forget — if they ever realised — just how hard-won the Good Friday Agreement was.
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Pat
December 6th, 2018
11:12 PM
In reply to nobby, who states 'you cannot compare a soldier who made a mistake in the heat of the moment......' my father was shot dead in cold blood by members of the MRF, a unit of the British Army who drove around Belfast in plain clothes in unmarked cars 'executing' civilians. Eventually this unit were disbanded as they were deemed to be 'out of control'. Obviously we expect these soldiers to be tried for the murder of our Dad. And why not? Wouldn't you want to see justice done if you were in our position?

John Ware
December 6th, 2018
7:12 PM
Nobby: The (regular) army killed 160 civilians, and 121 republican terrorists (Table 18, p 1561, Lost Lives). Most of those civilians were shot in the early and most violent phase of the conflict, and many may well have died in cross fire (including, I suspect, some of the 11 shot in Ballymurphy at the start of internment in August 1971). I trust you noticed my comment that ".....whatever crimes soldiers may have committed, people will struggle to see the remotest moral equivalence between the British Army and the IRA." John Ware

nobby
December 6th, 2018
10:12 AM
on the whole I agree with the solution to the legacy of unsolved killings put forward in this article.However there are a few points I would make.Firstly the author gives the impression that a large majority of the British Armys victims were civilians.In fact the army killed 149 terrorists and 152 civilians,roughly 50-50.Secondly you cannot compare a soldier who makes a mistake in the heat of the moment with a terrorist who carries out a pre planned cold bloded murder.Look at the Kingsmill massacre where the IRA stopped a minibus carrying workers home from a building site,seperated the protestants from the Catholic,whose name they knew,and then shot the Protestants.Nobody has ever been prosecuted for that either.I would be interested to know what proportion of Terrorist murders were successfully prosecuted,I suspect it is not as high as this article gives the impression of.Finally how can it be just to prosecute an old soldier who made one terrible mistake 40 years ago when the likes of Gerry Adams and Martin Mcguiness were/are allowed to pose as respectable elder statesmen.

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