Newton Emerson: Painful debate lies ahead as North grapples with Troubles amnesty

Naming Bloody Sunday “Soldier F” in the Commons this Tuesday under parliamentary privilege, SDLP leader Colum Eastwood said: “For 50 years he has been granted anonymity and now the government want to grant an amnesty.”

This left out a crucial detail. Soldier F had already been granted an amnesty at the Bloody Sunday Inquiry in 2003. Testimony to inquiries is inadmissible in subsequent criminal proceedings, conferring effective immunity on those who tell the truth.

Soldier F was the only Bloody Sunday soldier taken to court because the inquiry accused him of “knowingly [putting] forward false accounts”.

Immunity for testimony is one of at least half a dozen forms of Troubles amnesty operating in Northern Ireland. It applies in general at inquiries and has been used specifically to elicit information on paramilitary weapons and the location of the disappeared. These have been fundamental, high-profile aspects of the peace process: immunity for weapons decommissioning was announced in 1995 and dominated politics for a decade.

Newton Emerson: EU deserves credit for realism not generosity over North protocol

---

Newton Emerson: SF, DUP want to avoid Stormont collapse after gauging popular mood

---

Newton Emerson: Donaldson must reconcile unionism to the protocol

---

Newton Emerson: Poots’s big mistake was to move too fast

---

Intermediate attempts to get at the truth have created so much inadmissible testimony that trials collapse when they are attempted

Immunity for testimony is the basic mechanism of all “dealing with the past” proposals devised by the British and Irish governments, Stormont parties and various consultative bodies down the years. The most recent proposal is the 2014 Stormont House Agreement, reaffirmed in 2020’s New Decade, New Approach deal.

It would confer immunity via an “independent commission on information retrieval”.

There would also be a direct amnesty for non-fatal offences, including the 40,000 Troubles injuries, which would not be examined by its criminal investigations unit.

Intermediate attempts to get at the truth have created so much inadmissible testimony that trials collapse when they are attempted. The recent collapse of an unrelated trial is why prosecutors feel forced to drop their case against Solder F.

A feature of Troubles amnesties is strenuous denial that they are amnesties. Supporters of Stormont House insist it leaves prosecutions possible, even following “information retrieval”, should fresh information become available.

Similarly, the British government insists its new statute of limitations is not an amnesty because it does not grant pardons. These might have been plausible lines in the early years of the peace process but they are sophistry after two decades in which prosecutions have been virtually unknown.

Large numbers of royal pardons were granted secretly up to 2002 for Troubles crimes, mostly in return for information

A formal Troubles amnesty was discussed by governments and parties at the Weston Park talks as far back as 2001. It took another 10 years to enter mainstream debate in Northern Ireland, when it was tentatively proposed by senior figures in the legal establishment. All this delicate discussion has been somewhat absurd, given the overwhelming fact of the peace process’s main amnesty mechanism.

The Belfast Agreement’s prisoner release scheme applies to all serious offences committed between 1973, when emergency anti-terrorist legislation came into effect, up to 1998, when the agreement came into effect.

Its legal basis still stands: someone convicted of such an offence tomorrow could serve only two years – and in practice would be released sooner.

There has been some dispute over whether the scheme applies to former security force personnel. It was intended for paramilitaries, as the language of the legislation makes clear, but legal opinion is that a former soldier or police officer would qualify.

The British government simply made a political decision not to put its personnel through a process that would imply equivalence with terrorists – a posture now abandoned with the statute of limitations proposal, which would apply across the board.

Because the early-release scheme requires a conviction, a further amnesty was needed for IRA members who had avoided court.

This was arranged through the “on-the-run letters”, issued openly if quietly from 2000. Everything was meant to be tidied up with a formal amnesty for terrorists and security forces, agreed between Sinn Féin and the British government in 2004. A Bill reached the Commons the following year before the SDLP embarrassed both sides into abandoning it.

Many victims believe even the theoretical possibility of a day in court remains essential, legally and morally

When the on-the-runs scheme finally collapsed amid political controversy, a 2014 review strenuously denied it had been an amnesty because it had not ruled out prosecutions for all time. However, it had ruled them out while everyone thought they were getting away with it.

Large numbers of royal pardons were also granted secretly up to 2002 for Troubles crimes, mostly in return for information. The UK government has admitted 365 pardons were issued between 1979 and 2002 but this does not include the years 1987 to 1997, for which it claims no records can be found.

Amnesty is unpopular with the public, according to opinion polls. It is officially opposed by every Stormont party, with only Sinn Féin unofficially in favour. The Irish Government rejects amnesty, although it surprised observers last month by offering to move on from Stormont House. Many victims believe even the theoretical possibility of a day in court remains essential, legally and morally. Painful debate lies ahead.

But let nobody pretend amnesty is new to Northern Ireland. We have had a de facto Troubles amnesty for a generation.