SAS challenge to Troubles Bill: What does the legal letter to the UK government say?
The legal letter which has been sent to the Northern Ireland Office on behalf of the SAS Regimental Association savages its Northern Ireland Troubles Bill.
From the multinational law firm Sidley Austin LLP, and marked for the attention of Northern Ireland Secretary Hilary Benn, it warns that “if the bill is enacted in anything like its current state, it will be subject to challenge”.
The letter, which runs to seven pages, invokes Article 5 (right to liberty and security of person), 6 (the right to a fair trial), and 8 (right to respect for private and family life) of the European Convention on Human Rights.
When it comes to the protections for veterans which the government has touted as part of the bill, the letter dismissed them as “weak, mostly discretionary and in almost all cases, are routinely available anyway".
This is a reference to things like the right to request anonymity during any proceedings, the right not to have to travel to Northern Ireland, and the requirement that the Legacy Commission should not "duplicate" earlier work.
On the latter point, the letter states: "Abuse of process safeguards and the double jeopardy principle already provide this protection.
"Moreover, it is not understood how duplication can be avoided since almost all of the situations in question will have been examined multiple times."
In general, the letter says the bill "is manifestly deficient in terms of the protections which it offers to former service personnel, police officers and members of the security services".
It adds: "Repeated assurances have been given by the government that veterans would be supplied with specific protections in law to mitigate the effect of the repeal of the conditional immunities provided by the Legacy Act and the recommencement of investigations, inquiries and inquests.
"In fact, the bill contains almost no protections beyond those which already exist in law and guidance relating to the conduct of criminal investigations and inquests generally.
"The bill is fundamentally flawed in that it does not refer to veterans at all as a separate group.
"No attempt is made in the proposed legislation to distinguish between veterans and terrorists, paramilitaries and members of proscribed organisations.
"There are no clear definitions of 'victim' and 'survivor' in the bill.
"This raises the possibility that where those terms are used in the bill alone, or in order to supply rights to families and relations, the relevant provisions have the effect of providing rights which are exercisable by terrorists and/or their relatives on an equal basis to veterans and their families.
"The obvious practical effect of this is that terrorists and/or their families will have rights to demand that inquiries and investigations are commenced (or recommenced) and that they may have rights to be represented on consultative committees with the power to influence the work of the Legacy Commission."
On the prospect of prosecutions arising from inquests and the Legacy Commission's investigations, the letter says veterans have "a right to a fair trial - that is to say a process which takes place within a reasonable time and is fair in the sense of actually being capable of arriving at a safe conclusion".
But "any trial or process taking place years after the event which necessarily must involve unreliable evidence is not a fair one under the Convention".
It ends with 14 different recommendations, including:
"There should be a clear statutory presumption against any reinvestigation of matters already examined, unless material new evidence is certified to exist by the Director of Investigations";
"The bill should create a presumption of remote testimony for veterans, rebuttable only where the Legacy Commission demonstrates that in-person evidence is essential for some specific reason";
"Clarify that 'victim' and 'survivor' definitions exclude individuals who were members of, acted on behalf of, or assisted terrorist or proscribed organisations, preventing those responsible for paramilitary violence from claiming victim or survivor status";
"Presumption of anonymity for veterans";
And "an independent reviewer to monitor application of the above protections".