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11 November 2019

The Tories’ new policy on military veterans could create more problems than it solves

Whitehall sources warn amending the Human Rights Act to halt Troubles prosecutions could fail on its own terms and have damaging consequences.

By Patrick Maguire

Only one issue rivals Brexit in its ability to rile the Conservative grassroots: the prosecution of Troubles veterans. Nothing gets quite so loud a cheer at a meeting of Tory members — or, for that matter, backbenchers — as a promise to end the “witch hunt” against former servicemen alleged to have committed offences in Northern Ireland. 

In the final weeks of his successful campaign for the Conservative leadership, Boris Johnson made that very promise. He subsequently appointed Johnny Mercer, perhaps the most outspoken opponent of historical prosecutions on the Tory benches, as Veterans Minister. The results are splashed across today’s papers. 

In their manifesto, the Conservatives will pledge to “consider legislation that draws a clear line under the past, bringing to an end all ongoing investigations, inquests and prosecutions from the Northern Ireland Troubles”. The Human Rights Act will be amended so that it can no longer be applied to events that took place before 2000, when it became law. Doing so would naturally exclude any acts carried out by British soldiers during the Troubles. 

What are we to make of the proposals? Not very much, if you ask anyone on Whitehall who has worked on measures for dealing with historical prosecutions — an issue that is arguably just as toxic for Tories in Westminster as it is for politicians in Northern Ireland. Indeed, those opposed to the sort of quick fix championed by the likes of Mercer — and now adopted as Conservative policy — argue that his plans will fail on their own terms, and have damaging, unintended consequences elsewhere. 

Whitehall sources who have worked on legacy issues share the assessment of human rights lawyers: both believe that this policy will do very little to solve the problem the Tories want to solve, namely ending the prosecution of veterans. One points out that the legal basis for most cases is the European Convention on Human Rights, as opposed to the Human Rights Act, which gives it domestic legal effect. As long as the UK remains a signatory to the former, experts say the pledge to amend the Human Rights Act will mean very little for Troubles veterans.

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The risk of any such amendment, however, is that it would restrict the legal redress available to another group: victims of domestic terror and other disasters. Hillsborough and the Birmingham pub bombings — two historic tragedies currently subject to live legal proceedings — are the two cases cited by one former official as examples. 

Were the Human Rights Act to be tweaked along the lines proposed by the Tories, victims could lose their access to justice under domestic law. One sceptical Conservative warns: “This actually affects victims of terror attacks in Great Britain unintentionally, and it could inform a perception that we don’t care about victims’ rights.” That, sources say, is why the Ministry of Defence has never proposed doing so before.

The headline pledge to end “all ongoing investigations, inquests and prosecutions from the Northern Ireland Troubles” also raises difficult questions. Put like that, it sounds an awful lot like the Conservatives want an amnesty for veterans. Even if that isn’t the case, it’s true that amnesty would certainly be the only straightforward way of achieving those aims. Nobody in Northern Ireland wants an amnesty, however — not victims’ groups, and certainly not the unionist parties. 

Why? Because providing an amnesty for the army would mean one for paramilitaries too. As well the obvious offensiveness of that prospect to campaigners for an end to the so-called witch-hunt against soldiers, it also undermines the argument made by those Tories: that British soldiers ought to be held to a higher legal standard than the IRA and be prosecuted when the evidence warrants it.

Despite generating precisely the sort of headlines the Tories will have wanted this morning, its new line on legacy is more likely to create problems than it solves. That is, of course, if they really intend to make good on it should they return to government.

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