Now that parliament has returned, the government has questions to answer about its approach to the legacy of the Northern Ireland Troubles. Will it, under the new prime minister, continue with the previous government’s Northern Ireland Troubles Bill?
It should not. The Bill makes a bad situation worse. Instead, Andy Burnham should take the opportunity to adopt a fresh approach to securing reconciliation in Northern Ireland: drawing a line under the past for everyone and ending the injustice which is being inflicted on veterans and will be aggravated if the Troubles Bill is enacted.
The issues involved are the subject of a new Policy Exchange paper, The Special Air Service in Northern Ireland, published today, of which I am one of the authors. The report focuses on the role, during the Troubles, of the Special Air Service (SAS), who were deployed to Northern Ireland in 1976. The evidence collected in the report demonstrates that members of the SAS acted under close civilian control and were both subject to, and committed to complying with, rules of engagement that were tightly framed to reflect the requirements of the ordinary law.
The new government should not accept that its hands are tied by the law
Every use of lethal force by the SAS was investigated at the time, with soldiers held to account in the immediate aftermath of any incident. The picture is very different from the one of loose cannons, operating under a de facto shoot-to-kill policy, which is often painted by those for whom British troops were necessarily guilty and all their actions wrongful just because of their presence in Northern Ireland.
In the 28 years since the Belfast (Good Friday) Agreement, the veterans of Operation Banner, including members of the SAS – those who put their own lives on the line and fought to defeat the IRA and other terrorists to make peace possible – have been treated abominably. They have been subjected to a persistent and often vexatious campaign of lawfare calculated to impugn their reputations and to expose them to legal processes that have been fundamentally unfair. Having served honourably, subject always to the ordinary law applicable in Northern Ireland, members of the SAS and other veterans have, in their old age, had to face repeated and renewed investigation, inquests, and the possibility of prosecution – even though the more time that passes, the less likely it is that fairer outcomes can be reached than when the evidence was fresh.
The contrast with the treatment of terrorists is striking and it highlights the injustice involved in the treatment of service personnel and police officers. The Belfast Agreement itself made provision for a partial amnesty for terrorist offences by providing, on certain conditions, for the early release of prisoners convicted of Troubles-related offences. In the immediate wake of the Agreement in 1998, parliament enacted legislation authorising the early releases, making provision for immunity for information on victims’ remains, and barring forensic use of decommissioned weapons. There was no hesitation then in enacting what amounted to partial amnesties in relation to the Troubles.
In 2005, the then Labour government even proposed a wider, more general amnesty by way of the Northern Ireland (Offences) Bill. Although the Bill was rejected by parliament, the government decided instead to send out over a hundred so-called ‘comfort letters’ to paramilitaries who were ‘on the run’, reassuring them they were not being sought for arrest or prosecution. One such letter caused the trial relating to the Hyde Park bombing to collapse. Nothing comparable has ever been done for service personnel or police officers.
In 2023, parliament did attempt to do the right thing, both to secure information recovery and reconciliation within Northern Ireland and to be fair to veterans. The Northern Ireland (Legacy and Reconciliation) Act stopped further Troubles-related civil litigation, established a new independent commission for reconciliation and information recovery, and supported the commission’s work by providing conditional immunity from prosecution to those who gave evidence before it.
But the Northern Ireland courts declared structural elements of that legislation to be incompatible with the European Convention on Human Rights. Keir Starmer’s government, elected in 2024, had promised to repeal and replace the 2023 Act and chose not to appeal against the declarations to the supreme court.
The questions for Burnham’s new government focus on whether to go ahead with repealing and replacing the 2023 Act as proposed by his predecessor and, if not, what to do instead.
The consequence of going ahead with the replacement proposed by Starmer’s Troubles Bill would be that those who served in Northern Ireland during the Troubles – and did so in extremely challenging conditions, under a constant threat of being killed or maimed – would, once again, be unfairly exposed, many years after the event, to legal risk. It would be worse than before. The new legislation is framed with the clear effect of maximising the opportunity to undertake new investigations with a view to prosecution.
Our new paper, building on interviews with former members of the SAS, explains what the service did in Northern Ireland. It outlines how the regiment helped to degrade the IRA’s capacity to kill, restored order in areas where the group had operated with near-impunity, and convinced those who supported the IRA’s armed campaign that violence could not succeed. Parliament should recognise the contribution the SAS made and avert the injustice being done to its members.
What has gone wrong in the last quarter century is that successive governments have too readily yielded to pressures arising from judge-made human rights law. The European Court of Human Rights has repeatedly misinterpreted the ECHR’s Article 2 ‘right to life’, holding the UK at fault for failing to adhere to investigative standards that the court has invented since the events to which they are applied. It is the retrospective imposition of this case law to the Troubles – some of it resulting from questionable decisions by our own supreme court – that explains much of the problem.
None of this, however, absolves current ministers of their responsibility to decide and to act. The decision of the Labour government in 2024 to abandon any appeal to the supreme court regarding the previous year’s Legacy Act was a mistake. The same government was wrong to yield to the Republic of Ireland’s pressure to reopen investigations and prosecutions, particularly in light of the Republic’s own record of inaction in that regard.
Furthermore, nothing in domestic or international law requires the government to adopt the approach taken in the Northern Ireland Troubles Bill. The Strasbourg court’s Article 2 case law is lamentable but does not hold that a member state, dealing with the aftermath of a conflict or insurrection, cannot enact legislation drawing a line under the past. Our own supreme court recently acknowledged as much. And if such legislation were clearly incompatible with the ECHR, the early release and immunity enactments passed in connection with the implementation of the Belfast Agreement would also be ECHR-incompatible.
In his foreword to Policy Exchange’s new paper, Al Carns MP, minister for the armed forces until June, says that ‘the Northern Ireland Troubles Bill currently before parliament risks creating precisely the wrong architecture’. When one looks at what the SAS and others did during Operation Banner, at the legal and political conditions under which they served, it is clear that the proposals in the Bill that would, so many years later, result in a greater likelihood of more renewed investigations with a view to prosecution would be grossly unfair.
It does not have to be this way. The new government should not accept that its hands are tied by the law. They are not. There is nothing to prevent either a return to the 2023 approach or the enactment of some other more generally acceptable means to draw a line under the past and prevent further unfairness to veterans. If the Strasbourg court later hardens its position, denouncing legislation that aims to secure peace in Northern Ireland and do justice to those who served their country, then, as with prisoner voting, the government should refuse to comply. It is not for the courts to decide how peace and reconciliation are best achieved in Northern Ireland.
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