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Sir Declan Morgan claimed the parties had “done nothing” to develop Assembly legislation to deal with unresolved issues related to the conflict and said they should not be surprised that the Government had intervened with its own draft Bill.
There were pointed exchanges during his appearance before the Northern Ireland Affairs Committee after the former top judge claimed Alliance MP Stephen Farry had written to him in 2019 to advise him against going public with his own proposals to break the stalemate on legacy.
“I’m still wondering Stephen, why you wrote to me in 2019 and told me not to speak,” he asked the North Down MP during the fiery evidence session.
The Alliance deputy leader responded robustly, accusing Sir Declan of breaching confidentiality and indulging in “political point scoring”.
The region’s one-time highest-ranking judge, who now sits on the supplementary panel of the UK Supreme Court, was giving evidence to the committee on the Government’s controversial Bill to address legacy issues.
It proposes a new approach to dealing with the conflict, with more focus on truth recovery rather than criminal justice outcomes.
Its most controversial aspects are the promise of immunity from prosecution for perpetrators who agree to provide information to a new truth body, and a move to end conflict-related civil cases and inquests.
The Bill is a unilateral move away from the 2014 Stormont House Agreement, in which the UK and Irish governments proposed a model that involved a new independent unit to reinvestigate unsolved murders.
Sir Declan said there were several “challenges” with the contents of the Government’s Bill, claiming it would end up as a “disaster” and “catastrophe” if it was found not to comply with human rights laws.
However, he insisted the legislation could be “rescued” by way of amendments in Parliament.
He then questioned those advocating scrapping the legislation entirely, arguing that, if it fell, victims could end up with nothing.
All the main Stormont parties are opposed to the Bill.
Sir Declan rejected the suggestion that the Government was inappropriately interfering in Stormont’s affairs.
He said the Government’s stance was not surprising given the failure of the local parties to progress the Stormont House proposals.
“I have seen no sign of the local parties coming forward with a draft Bill, showing the way forward and showing that they can get the support of the community for what they’re going to do,” he said.
“I have seen no sign of that. If there is a Bill which has the support of the parties and has been put to the Assembly, I’d like to see it, and you’ve had seven years to do it and you have done nothing.”
He added: “You’ve had from December 2014 to do it. You haven’t done it. We’ve gone nearly seven and a half years. I’m not surprised that somebody’s decided that’s too long.”
Sir Declan claimed the local parties were “held back by their own electorate”, whom he said were “completely lacking trust in relation to dealing with legacy issues”.
“For many of them the problem that they have is that they’re afraid that dealing with legacy issues will suddenly become a rewriting of history, and that’s why people are nervous about trying to face up to it at home,” he added.
Sir Declan told the committee that in 2019 he wanted to inject some momentum into efforts to advance the legacy agenda in a speech proposing to “rejuvenate” the Stormont House framework along with his own “add on” proposal for a forum or commission of inquiry to allow victims to tell their stories in the public space.
He said he made local parties aware of his plan and told them he was only going to go ahead with the speech if they did not raise objections.
Sir Declan told the committee that Mr Farry had written to him in August, 2019 advising him against proposing an alternative to the Stormont House framework. He then read extracts from their written exchanges into the record.
The North Down MP confirmed he had written the letter, insisting what the then lord chief justice had been proposing was a “drift away from Stormont House”.
I worry about the fact that the current imperative for a prosecutorial process is a political issue, in that no one seems to be brave enough, in my view, to say, well, maybe we should look at an alternative
“That wasn’t in my view helpful at that time,” he added.
Reacting to the Alliance MP’s reply, Sir Declan said: “I can see you’re upset about it, Mr Farry”.
The politician criticised the former lord chief justice’s actions.
“I have to say I’m quite struck by someone who says they’re still an active judge entering into what I can only say is party political point-scoring by actually bringing it up in the first place.”
He pressed Sir Declan on why he had made the contents of his letter public.
“Why did you read it out, are you in the habit of breaching confidentiality?” he asked.
The senior judicial figure insisted the letter was not marked confidential.
Mr Farry said the majority of parties supported the Stormont House Agreement when it was signed, and it was the Government’s fault the plan had not progressed.
DUP MP Ian Paisley, who said his party had withdrawn its consent from Stormont House around five years ago, said Sir Declan’s claim about Mr Farry’s letter was an “explosive revelation”.
“That gambit by you to bring forward a proposal to stimulate the juices, to say ‘here’s a proposal, here’s my additions to it to improve it and to deal with some of the vexed issues’ and it was actually, in your view, stopped by that response,” he said.
SDLP MP Claire Hanna challenged Sir Declan’s claim that there was no consensus on the Stormont House proposals.
“I don’t think you’re correct to say that there wasn’t consensus,” she said.
The South Belfast MP said there was a “much broader degree of consensus” in Northern Ireland society around the Stormont House plans than the Government’s legacy Bill.
Northern Ireland’s former director of public prosecutions, Barra McGrory, also gave evidence to the committee on the Bill.
He was highly critical of the proposals, claiming they would “abolish due process”.
“I can’t see how that could possibly meet the standards set by the European Convention on Human Rights, in my humble opinion,” he said.
Mr McGrory said he favoured an approach for dealing with legacy that moved away from the prosecutorial system, claiming only “very, very few” historic cases would ever result in a successful conviction in the present day.
He suggested, instead, focusing on progressing cases in the civil courts, where there was a lower burden of proof to determine liability.
“I worry about the fact that the current imperative for a prosecutorial process is a political issue, in that no one seems to be brave enough, in my view, to say, ‘well, maybe we should look at an alternative’,” he said.
Mr McGrory said victims wanted “accountability”.
“What worries me about the emphasis on prosecutions is that it doesn’t actually deliver accountability, because so few of them will ever succeed,” he said.
The senior lawyer said an alternative model that concentrated on civil cases could only work if the system was sufficiently resourced to deal with the work required.