CHAPTER 9: Conclusions and the Way Ahead
The Group acknowledges that its recommendations represent significant challenges for many within society. This Report will generate further debate on how the past should be dealt with and this will be an important part of taking forward the recommendations. The Group expects that, at the end of a period of debate, the British Government would give its formal response. The Group would invite the Irish Government and the OFMDFM to do likewise.
The Group urges the British Government, in the intervening period, not to lose time in preparation of the necessary legislation and in taking other steps towards implementation, including the establishment of an Implementation Group. The momentum built up during the Group’s work should be maintained and the prospects which the Legacy Commission can deliver should be realised as quickly as possible.
The Report represents a sizeable body of work for those who will have the task of implementing its recommendations. It will take time to do this in a way which is true to the Group’s intention, which is sensitive to the needs of victims and survivors, and which takes account of the present landscape of processes. It will be important to ensure a smooth transition from those to the new Commission. The Commission involves complex procedures. Primary legislation will need time and care to prepare. But the Group believes that the Commission could be established by late 2010.
The selection of Commissioners for the Legacy Commission and in particular the International Chair of the Commission will be critical to its success. Work should begin as early as possible in seeking out potential candidates and every effort should be made to appoint the Commissioners as soon as possible after the requisite legislation is approved. Other recommendations within the Report should also be developed further by the Implementation Group in an efficient manner. In particular, the Group would urge that recognition payments should be made as soon as practicable to the nearest relative of those who died as a result of the conflict.
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I repeat my earlier comments here for ease of reading and add my own conclusions. The following are my comments in full.
Brian Walker’s review of Eames/Bradley: the Consultation on the Past
The road map
“We hold these truths to be self evident” might have adopted as the motto of the Eames/Bradley Consultative Report on the Past as well as for the preamble to the US Constitution, but with far less justification.
The report’s “road map” identifies reconciliation and a shared future as the desired destination but without much sense of direction for getting there.
The report writers assume a basic moral consensus which does not yet exist.
They hanker after a soft landing from the Troubles and play down the need to learn hard lessons.
They concentrate overmuch on the testimony of victims and survivors, in the apparent belief that if that category can be satisfied, the rest of us will follow.
Preferring to treat the information recovery as a private exercise for relatives, they lack any clear concept of the wider public interest.
Their moralistic approach bristles with fallacies, question-begging and assumed answers without analysis. “Resolution “ would have been a better goal than
“ reconciliation.”
Contrary to their most cherished assumptions, truth telling is not necessarily reconciling; it contains many terrible messages and the results are bound to be unpredictable. Giving closure to some victims and survivors in unlikely to reconcile highly politicised audiences. While a sensitive-seeming approach, private story telling may be a means of learning truth but may also leave lies unchallenged and perpetuate a denial of justice. Rather shockingly, there are Orwellian hints at anaesthetising evidence in order to effect reconciliation. By concentrating on the bereaved and the injured and acting almost like psychotherapists, they ended up with the paradox of a bland analysis leading to controversial conclusions. Eames/Bradley’s most important achievement could have been to convince the ideal “reasonable person” of their way ahead but alas, they did not succeed. The deafening silence following the initial flood of predictable criticism is testimony to that.
Legal Processes – or not
Eames/Bradley does little to increase public confidence in the judicial system, surely a necessary part of a resolving society. The proposal to rely on the legacy commission and dispense with further public inquiries will certainly fail to reconcile many families or allay wider scepticism and suspicion. The statement on this is breathtakingly presumptuous: “The Group has…. favoured a mechanism which would be private, non-judicial and non-adversarial in preference to the public, judicial or quasi-judicial commissions of other countries.”
What will happen to the mountain of collusion evidence in the Stevens reports over say, the Finucane murder if the Finucane family decline to cooperate with the legacy commission? Is the public interest in collusion to remain subject to their wishes and that of those like them? The Report is silent on this; for this is not “nice” story telling, it is “nasty” and unresolved.
The abandonment of public inquiries might have been more viable if accompanied by an admission that offers of immunity are meaningless now that the era of prosecution is effectively over. Nevertheless, instead of dispensing with public inquiries so readily, the Group should have canvassed opinions on the future role of judicial and inquiry processes from legally qualified people including the Attorney General, the DPP and the judiciary as well as client lobbies.
To be fair, Eames/Bradley were caught up in the distortions to the rule of law created by the peace process. They were hobbled by the refusal of the authorities to admit that the trial phase of the Troubles is over for paramilitaries associated with the Good Friday Agreement of April 1998. This reluctance can only be seen as a sop to some of the victims’ lobbies. By falling short of recognising the fact of a de facto amnesty, Eames/Bradley launch their prize recommendation of the Legacy Commission on the shifting sands of evasion. Yet their whole approach suggests they realise the weakness of their position. A voluntary approach to truth telling is the main option left, when neither incentives nor sanctions exist any longer to make people tell the truth. Otherwise, the Report would hardly have dared conclude that “ the very demand for justice can militate against the main goal of reconciliation” and dismiss so casually the conventional view that justice should be done and be seen to be done. One cannot help feeling that Eames/Bradley know full well in their hearts that the era of trials for the Troubles is over but could not pluck up the courage to admit it and go on to explain why this is so.
With their considerable moral authority, Eames/Bradley should have mounted open hearings on this core subject of public inquiry during their consultation rather than throwing in the idea of the Legacy Commission without considered open debate. Cynics will say that the commission idea will be music to ministers’ ears. This will hardly endear it to many.
Although the investigatory and information-recovery stages of the Legacy Commission are to be carefully separated, attempts to run the two processes plus the thematic stage simultaneously still ring alarm bells. How can an investigator be sure that when he clears a case for disclosure to a family, that the deeds of say, the same IRA ASU will not crop up many years and many cases later? This problem would be obviated if the threat of prosecution, now purely formal, were finally lifted.
Disclosure issues
How much disclosure and in what forms? The Report is vague. The attempt to restrict the right to see certain documents to families only is no guarantee of security on the one hand and may unduly limit pubic interest disclosure on the other. Despite the efforts made to separate out legal investigation from story telling, there seem ample grounds for confusion and frustration. It would have been useful if the Report had produced from the HET a representative sample of story-telling, fictionalised if necessary.
The following is a remarkable piece of wishful thinking:
“But the Group does not see the outcome of the information recovery process or thematic examination as blaming or naming individuals. In the process of information recovery, the aim is to resolve unanswered questions. In thematic examination, the purpose is to look at overall accountability, not individual accountability; to identify areas where things went wrong and why they went wrong; to gain greater understanding; to encourage apology where appropriate; and to build a shared and reconciled future.”
Where do stories of the nutting squad fit in here? Or informers (inform-ants?) Living ones like Stakeknife or the dead like Denis Donaldson or William Stobie? Castlereagh interrogators? They would hardly be reconciling stories, but they could be part of resolution.
What level of access to the files will be given to the public and when? A 30-year or 15 year rule? A further delay for the most sensitive or a special regime? Or immediate release? Who decides and vet the papers? Eames/Bradley neglects to make specific recommendations for what will surely become the most important resource for resolving and assimilating the Troubles: painstaking research, followed by publication and peer review.
Conclusions
If they had widened and deepened the range of their inquiry to match their ambition and anticipate obvious criticisms, Eames/Bradley would have stood a better chance of retaining the initiative in public debate. They should have exploited their moral authority more, using it to pose fundamental questions, sometimes in public sessions.
Politicians should have been bound into the process openly at the formative stage. On the idea of recognition payments for instance, they would have had to explain to their own public why they would deny payments to their own side’s victims, in order to deny them to their opponents ’ – which might be called cutting off their nose to spite their face. They would also have come under pressure to offer their own ideas rather than merely reacting negatively. As it is, the IRA and all other paramilitaries are taking shelter under the cover of the unionist rejection of recognition payments.
Government, other pubic representatives, legal and police figures should have been examined on the whole range of the Consultation, but especially on the question of replacing judicial public inquiry by private story-telling. It is far from clear for instance, that all aspects of this proposal are human rights compliant. As government is detached from the process, it will be easier for them to kick it into the long grass.
The question of general responsibility before the law should have been examined, as it relates to belief that the Report’s avowedly neutral approach as between public servants defending the State and those attacking it, in reality militates against State servants, where the trail of evidence is usually clearer than for paramilitaries. Do policemen and soldiers have the same or greater obligations under the law than civilians (who may be paramilitaries)? How well observed were the obligations of the State’s legal monopoly of the use of force?
Actuarial and legal assessments might have been made on real need and anomalous treatment especially for victims or the 1970s and 80s, rather than plucking the idea of recognition payments out of the air - or rather from the Celtic Tiger in its glory days. These might have proved a less controversial alternative.
Finally, a new theory of the State for the new Northern Ireland might have been devised and political parties invited to sign up to it. This could be founded on the propositions that the British and Irish identities are complementary rather than contradictory and that the principles of pluralism in the 1998, 2006, 2007 Northern Ireland Acts should be entrenched rather than grudgingly accepted. That would be the past’s best legacy: a contribution to reworking their basic constitution by the Northern Ireland people themselves.
…ends