In the fifth part of our series on the legacy imbalance scandal, PROFESSOR ARTHUR AUGHEY says that the proposed approach to the past is assisting self-serving narratives of loyalists and republicans who rejected the democratic process (see links to rest of series at bottom of article):
The Draft Northern Ireland (Stormont House Agreement) Bill is a ‘legacy’ document in its own right.
The justification by the Northern Ireland Office’s (NIO) ‘Legacy Policy Team’ for its content is to deliver on the Stormont House Agreement — committed to by key political ‘stakeholders’ — which has ‘sufficient consensus’.
The draft Bill involves a civil service logic: it is time to get this done; the template has been agreed; so let’s get it done.
From that bureaucratic angle, it all makes perfect sense.
The Legacy Policy Team has done its job.
There is another logic in play, that of policing and justice.
Resources need to shift to problems of the present.
Outstanding issues from the past should be removed and dealt with in the manner set out in the draft Bill.
For the Department of Justice, concerned with managing its budget, that makes perfect sense too.
One can appreciate those complementary logics.
However, it is clear that they have encountered a reasoned scepticism and, as the contributions to this series in the News Letter confirm, there is widespread criticism or rejection of what is proposed according to proportionality, legitimacy and justice.
• clear anxieties about how the institutions would function;
• concern about the complexity of the process;
• serious reservations about the scope of the Historical Investigations Unit (HIU);
• failure to be convinced that there would be delivery on the objectives of the Bill;
• and suspicion that the outcome will not be balanced, never mind truthful.
The Bill may be an ingenious blueprint drawn up by very clever drafters. Yet the structure arising from it appears a gothic folly of labyrinthine legalism but built on the narrowest of ethical foundations.
There has been much criticism, for example, of the exclusive focus on killings which ignores those injured by bombings, shootings and the so-called collateral damage of republican and loyalist terror campaigns.
This is only a manifestation of a deeper conceptual problem.
The consultation paper accompanying the draft Bill is titled: ‘Addressing the Legacy of Northern Ireland’s Past’.
There is a confusion, or running together, of the limited, legalistic understanding of ‘legacy’ we find in the Bill and the larger matter of ‘addressing’ or ‘dealing with’ Northern Ireland’s past.
In large part that confusion explains the intuition that the Bill does not represent, as the Secretary of State claims, ‘the most effective and far reaching proposals to address Northern Ireland’s past and promote further reconciliation’.
Lawyers can comment on whether the proposed institutions do uphold the ‘rule of law’ and will operate in ‘a manner that is balanced, proportionate, transparent, fair and equitable’.
My point is a simple one: that the running together of ‘legacy’ (so defined) and ‘addressing the past’ (confined by this prior definition of legacy) leads to a distortion of the past.
With due respect to our new growth industry, I fear what will emerge at the end of the process is an official sanctioning of the Black Taxi Tour version of Northern Ireland’s past.
What do I mean?
In the draft Bill, the past is effectively confined to the encounter between ‘anti-state’, ‘pro-state’ and ‘state’ forces.
And that confinement, of course, is a reading of history which fits very well the self-serving and self-exculpating narratives of those groups — loyalist and republican — which rejected the democratic process in order to undermine the rule of law.
It is a ‘war’ narrative.
Written out of the past are those in politics, public service, churches and civil society who helped keep people out of that war narrative.
Surely the ‘independent academic report on themes’ will address that limitation?
Surely that report will provide the larger historical perspective to balance the limited legacy narrative?
Unfortunately, it won’t.
It will reflect exclusively on the ‘evidence base’ of the other institutions, pre-determining its scope.
Dealing with the past in such a way can only leave its own legacy of partial untruths.
It is quite remarkable that proposals to deal with the past have no role for a historical commission.
Such a commission could provide an alternative approach, helping people to make sense of the past, one which puts campaigns of violence in context.
The Oral History Archive, while a potential valuable resource, will lack intellectual substance if not complemented by a close study of archival sources.
This is the proper way to deal with ‘facts’, to understand themes and patterns and to yield an explanation of events
This historical approach has been dismissed as fantasy (as if never implemented elsewhere); labelled academic in the sense of being irrelevant (as if the current approach is not academically based); and dismissed because historians disagree (as if legal interpretation is self-evident).
The consultation paper asks whether there is a different way to address Northern Ireland’s past.
The answer lies in what is missing in plain sight in the Bill.
Bring history in.
• Arthur Aughey is emeritus Professor of Politics at the University of Ulster
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