The Overseas Operations (Service Personnel and Veterans) Bill and the Irish Sea: risks of reciprocal application to the legacy of the Northern Ireland conflict

The Overseas Operations (Service Personnel and Veterans) Bill (as introduced) does not apply to legacy cases from the Northern Ireland conflict. Yet against the backdrop of similar cries of ‘witch hunt’ its introduction in 18 March 2020 was concurrent and explicitly linked to a Written Ministerial Statement on the same day. Through this the Secretary of State for Northern Ireland announced the unilateral-abandonment by the UK of the Stormont House Agreement (SHA) to, in his words, ’ensure equal treatment of Northern Ireland veterans and those who served overseas’. 

This constituted a seismic U-turn, legally and politically. The SHA had been painstakingly negotiated by British and Irish governments and the five parties in the NI Executive. It proposed new institutions to deal with unresolved conflict-related deaths. This included an Historical Investigations Unit (HIU), an independent body with full police-type powers to conduct Article 2 ECHR compliant investigations, and an Independent Commission on Information Retrieval (ICIR), a truth-recovery body with a case-by-case focus, to be established with international immunities. The SHA built upon and followed several other lengthy negotiations on new mechanisms to ‘deal with the past’ in NI where procedural right to life Article 2 ECHR violations of had long been found by Strasbourg in the (McKerr) Group of Cases Concerning the Actions of the Security Forces in Northern Ireland.

Following the conclusion of the SHA in December 2014 Whitehall then dragged its feet in bringing forward implementation legislation, not least by inserting vaguely defined ‘national security’ vetoes over the disclosure of information from the HIU and ICIR. The UK however did conclude an international treaty with Ireland on the ICIR and ultimately in summer 2018 conducted public consultation on a draft bill. The UK repeatedly assured the Council of Europe Committee of Ministers it would legislate for the SHA and the December 2019 Queen’s Speech committed the new government committed to the ’prompt implementation’ of the SHA. Shortly afterwards in the 9 January 2020 UK-Ireland New Decade, New Approach (NDNA) Agreement to restore the NI power-sharing government the British Government committed to introduce the SHA implementation legislation into Westminster ‘within 100 days’. 

Despite all of this by March the Ministerial Statement unilaterally abandoned the UK commitment to legislate for the SHA. Instead it announced an unclear alternative process focused on severely limiting any further legacy investigations, the lawfulness of which has already been queried by, among others, the Northern Ireland Human Rights Commission.

Despite the Overseas Operations (Service Personnel and Veterans) Bill not applying to Troubles legacy cases, the Bill as it stands, insofar as it would operate in the NI courts, would nevertheless breach a core commitment of the 1998 Good Friday Agreement (GFA) by rolling back domestic incorporation of the ECHR here. The GFA is a UN-deposited treaty which commits the UK to ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention.’ Clause 11 of the Bill would amend the Human Rights Act 1998 to limit direct access to the NI courts and remedies for breaches of the ECHR in relation to proceedings in connection with overseas operations. This breaches the GFA commitment which is neither qualified to events in Northern Ireland nor to a particular arbitrary cut-off date.

Despite the abandonment of the SHA, there remains an even more insidious risk that backbench Tory MPs could seek to amend the Overseas Operations (Service Personnel and Veterans) Bill so that its provisions would capture Northern Ireland legacy cases. Clause 1(2) of the Bill contains a provision whereby a relevant prosecutor making a decision “as to whether any proceedings against a person for a relevant offence should be continued” could be bound by the limitations in the Bill. This provision could therefore be harnessed to try and derail the small number of NI legacy prosecutions against soldiers that have already been initiated but are yet to come to court. There have been sustained campaigns in particular over the prosecution in 2015 of Dennis Hutchings for the attempted murder of John Pat Cunningham (a vulnerable adult shot dead in the back in 1974) and subsequently the decision to prosecute ‘Soldier F’ in relation to the 1972 Bloody Sunday massacre.

To date there has not being a single conviction of a soldier as a result of a Troubles legacy investigation and there were only a handful of convictions during the conflict here itself. However, the small number of legacy prosecutions initiated in recent years, themselves products of GFA-driven reforms of the NI justice system and strategic litigation, has been followed by a backlash from elements of the UK political and media establishment. What followed was a raft of alternative proposals to the SHA mostly seeking various forms of de facto military amnesty in legacy cases.

As with the discussions leading to the Overseas Operations (Service Personnel and Veterans) Bill, this included calls for a ‘statute of limitations’ to be applied to Northern Ireland. There were also a number of proposals which would have placed decision-making power over prosecutions of former service personnel in the hands of the Attorney General. CAJ and academic colleagues in Queens University produced a detailed critical analysis of these proposals and found them to be incompatible with duties under the ECHR. We also noted that as well as conflicting with the SHA, many such proposals would in effect reverse key reforms to the justice system conducted further to the GFA.

Like the Bill, the NI proposals were brought forward against the backdrop of a ‘witch-hunt’ narrative alleging unfair treatment of former soldiers. The CAJ-Queens University report however assessed and observed that the key arguments deployed were ‘neither factually nor legally accurate and lack intellectual credibility.’ This is illustrated in particular by recent legacy investigations into cases involving the military in the early 1970s. Between 1969 and 1974, 170 people were shot dead by the British army. Sixty-three per cent of these were undisputedly unarmed at the time and only 12% (24 people) were confirmed as armed, with a further 14 listed as ‘possibly armed’. Yet at the time there were no convictions, prosecutions, or indeed even police investigations into these deaths, due to an agreement ceding jurisdiction to the Royal Military Police.

The substantial majority of present day legacy cases being processed in Northern Ireland relate to the activities of paramilitaries and not the security forces. However, proponents of the ‘witch-hunt’ narrative often point to the proportion of legacy cases involving the security forces being over the 10% of conflict related deaths for which the security forces were directly responsible (when the presently unquantifiable additional number of deaths involving security force collusion with paramilitaries are discounted). However, even cursory analysis of this points to the proportionately elevated number of state-related cases requiring an effective legacy investigation being attributable to ‘widespread acceptance by criminal justice and legal professionals that they were not properly investigated in the first place’ rather than unfair treatment of the armed forces.

In essence the contention of a witch hunt is a myth on which policy is now being founded. In reality there has been general impunity and lack of accountability for human rights violations during the Troubles, which has limited furthering the goal of guarantees of non-recurrence. 

Since the March Ministerial Statement, there has been silence from the UK Government as to the shape and detail of its new legacy proposals for Northern Ireland. There has been no public or political engagement to date on their content. Yet it was revealed to Parliament on 20 July 2020 in an incidental Ministerial response to a question (in a debate on civil claims against the UK military abroad) that a new NI legacy bill is under active preparation.  The introduction of a new bill may be therefore imminent, and may even coincide with the progression of the Overseas Operations (Service Personnel and Veterans) Bill.

Many of the problems with the two sets of proposals are therefore linked and shared. However, the Northern Ireland proposals also contain the risk of reversing key justice reforms of the peace settlement and of marking in essence a return to the situation whereby the rule of law was simply routinely not applied to the security forces during the conflict itself.