Earlier this year, Jonathan Caine, who has served six Conservative Northern Ireland Secretaries as a Special Adviser, floated a possible solution to the vexatious pursuit through the courts of former members of the armed forces who served in Northern Ireland.
“There is no moral equivalence between someone who sets out to do his or her duty upholding the law, but who in the course of that duty might discharge a firearm with possibly fatal consequences, and the action of someone who deliberately sets out to commit murder,” he wrote.
At first glance, that view appears to draw a distinction between soldiers and terrorists – and this indeed would usually be the case. But the starting-point of Lord Caine’s proposal was to focus “not on what clothing people wore but on what they did”.
He suggested that “no investigations or proceedings into suspected Troubles-related offences could commence or continue without a certificate being issued by a senior legal figure”. Such a certificate could only be issued “if that legal figure were to conclude that a person potentially under investigation or facing trial had not honestly believed that the action he or she took with lethal or injurious effect was reasonable in the circumstances”.
This approach would have the advantage of working with the grain of existing law, since it would be “based on a modified application of Section 3 of the Criminal Law Act (Northern Ireland) 1967 and the common law on self-defence, and was raised in a recent lecture by the Attorney General for Northern Ireland”.
If reports today are to be believed, Boris Johnson is considering taking a different route in the Conservative Manifesto, due to be published shortly – namely, amending the Human Rights Act to provide a presumption against prosecution for historical offences.
The proposed change would apparently prevent prosecutions where “no new evidence has been produced and when accusations have already been exhaustively questioned”. A draft of the manifesto reportedly commits to ending ‘ongoing…prosecutions’.
We appreciate the political and electoral context in which such a pledge is being considered. Yesterday was Remembrance Sunday and today is Remembrance Day, during which we honour the memory of those who made the ultimate sacrifice for their country, and those who were left maimed for life, and think too of their families and friends.
So it is that the political parties are producing policies that seek to win votes from members of the armed forces and those who support them. The Liberal Democrats want to scrap settlement fees for veterans born outside the UK. Labour is committed to boosting housing for servicemen and women and providing more support for their children.
But that Jeremy Corbyn is weak on defence – let alone supporting our armed forces – goes almost without saying, and the Party will make the most of it. Hence the floated Conservative plans for plans for guaranteed job interviews for veterans applying for public sector work and a tax cut for businesses employing former soldiers.
The scheme to amend the Human Rights Act must therefore be seen against this background of the run-up to polling day. There is reason to believe that the approach floated by Lord Caine is more practicable, fair, impactful in Northern Ireland, good for the Union, and likely to be implemented.
For a start, it is doubtful that a majority Tory Government would want to take a course that could lead to a clash with the European Convention of Human Rights. This is because of the place of the Convention in helping to cement support for the Union. During the EU referendum campaign, Theresa May favoured leaving the European Convention. But during the 2017 election, she committed to staying in it “for the duration of the next Parliament”.
The former Prime Minister had come to recognise that the convention is baked into the Belfast Agreement, and that at present there is a consensus for its continuance in Scotland. Brexiteers who are also Unionists should likewise focus on foiling the SNP and strengthening the Union in the wake of Boris Johnson’s EU deal.
On that last point, Lord Caine does not “believe in drawing a line in the sand, still less a general amnesty. It would not receive widespread acceptance in Northern Ireland, particularly from the victims and survivors of terrorism who still seek justice for what happened”.
His solution is not some soft scheme crafted to appease Sinn Fein or satisfy Irish nationalist opinion. Neither would be likely to welcome decisions of such importance and sensitivity being made by a branch of UK government – namely, the judiciary.
The Caine plan is not perfect (and nor does it deal with claims outside Northern Ireland), but it is plausible – squaring protection for retired soldiers who did no more than their duty with the obligation to uphold the rule of law at all times. The Prime Minister is right to seek to protect former members of the armed forces, who gave so much for their country, from lawfare which seeks to delegitimise the contribution they made to combating terror.
The challenge is to find a way of actualising that aim which doesn’t promise more than it can realistically deliver, take risks with the Union best avoided, or stumble into major constitutional change without the pitch having been adequately rolled.