Arthur Aughey: The controversial Northern Ireland Troubles (Legacy and Reconciliation) Act - a better or worse compromise?

Once those illusions are discarded, what’s left is a choice between better and worse compromises. Such choices are always uncomfortable and confronting them requires politics not law. The Belfast Agreement of 1998, now taken by many commentators as Holy Writ, was such an uncomfortable compromise. It neither resolved the Northern Ireland question nor brought closure. What it did was modify the circumstances of enduring disagreement, with dark deals on prisoner release, immunity and illegal weaponry which offended public morality and outraged many people’s sense of justice. The current act has a similar character.

Writing in Slugger O’Toole, Professor Brice Dickson, former chief commissioner of the Northern Ireland Human Rights Commission, made a qualified defence of the 2023 Act with reference to 1998. Opponents, he argued, come close to saying ‘that human rights concerns must trump everything else, including the public interest in a society moving on from its conflicted past’, an argument not made 25 years ago. Such fundamentalism would make Northern Ireland an international exception. He concluded: ‘Surely there comes a time, except when there have been crimes against humanity, when a society’s conflicted past is best left to historians and film-makers, not to judges and lawyers’.

We have been here before.

In 2013, during all-party talks on the Haass Report on legacy, the then attorney general, John Larkin, in an interview with the late Liam Clarke, suggested an alternative to the legal route. Every competent criminal lawyer, Larkin said, knew the prospects of conviction diminish, perhaps exponentially, with each passing year and argued this fact should be acknowledged.

His proposal was to end inquests, criminal case reviews and prosecutions on offences carried out before 1998. ‘What I am saying is take the lawyers out of it. Lawyers are very good at solving practical problems in the here and now, but lawyers aren’t good at historical research.’ He thought the people who should be getting history right were historians.

Larkin had stated an unpalatable reality for most victims’ families. He’d identified the hopelessness of hope that some or any perpetrators would be made amenable. His alternative was too radical, too controversial and, like the present act, almost universally condemned.

Following Larkin’s intervention, the Arkiv group of academics (myself, Maire Braniff, Tom Hennessey, Cillian McGrattan and Simon Prince) formed because of concern about the lack of serious historical reflection in Haass, tried to think through what his alternative might look like.

Arkiv considered the establishment of a historical commission, with Government agreeing archive access and terms of reference. That process would involve acceleration of existing practice, the release of state papers. Commission scholars would consult as much material consistent with national and personal security, working independently, guarding their objectivity jealously and ensuring the integrity of their work. The terms of reference would be to analyse the course of the Troubles, draw out possible lessons for stability and reconciliation and deliver a comprehensive public history.

The focus would not be on terrorism and counter terrorism alone. Understanding the Troubles required a broader assessment such as sociological and psychological explorations of the impact of the Troubles on people’s lives.

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Arkiv proposed three main pillars - archival researches on state papers, oral testimony, and new public institutions like a documentary archive and Troubles museum. The past being conceived exclusively in a law/rights framework was considered dangerous and partial. The so-called ‘dirty war’ narrative could re-write the past and marginalise the moderate and law-abiding, possibly writing out of account even John Hume and David Trimble.

How does the act measure up against Arkiv's thought experiment on a historical commission?

Part four of the legislation sets out ‘a memorialisation strategy’. There are provisions for an oral archive and a possible museum of the Troubles.

A programme of independent academic research is specified with access to information from the Independent Commission for Reconciliation and Information Recovery (ICRIR), requiring ‘designated persons’ to deliver a final report after seven years.

During the passage of the Bill, Lord Caine assured appropriate access to relevant state papers. Moreover, the ICRIR will produce a sort of updated version of Lost Lives. The legislation emphasises inclusion and reconciliation. These proposals should be welcomed as the compromises they are.

It is premature to declare that the institutions in the act cannot ‘work’. In Sir Declan Morgan, chief ICRIR commissioner, and Peter Sheridan, commissioner for investigations, we have already appointments of the highest integrity and ability. We can be confident of their dedication and professionalism.

Whether the act survives local court challenges remains to be seen, although they can only declare provisions to be incompatible with the European Court of Human Rights, not get the act struck down.

The value of the memorialisation strategy can only be judged by its ultimate products so participation at all levels should be encouraged.

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Arthur Aughey is Emeritus Professor of Politics at Ulster University and a member of the Malone House Group

This is the latest in a series of articles on the Legacy Act by the Malone House Group, which is concerned about the use of ‘lawfare’ against the UK state and an imbalance against the security forces.