Ben Lowry: Tories and unionists need to stand firm and reject anti-state Troubles probes imbalance

Dead horses and destroyed cars at the scene of carnage in Rotten Row, Hyde Park, after an IRA bomb exploded as the Household Cavalry was passing in 1982, murdering four soldiers. Many private legal actions against the security forces in Northern Ireland are getting legal aid yet a private action against the IRA for Hyde Park, one of only two cases in GB, is not. Photo: PA Wire
Dead horses and destroyed cars at the scene of carnage in Rotten Row, Hyde Park, after an IRA bomb exploded as the Household Cavalry was passing in 1982, murdering four soldiers. Many private legal actions against the security forces in Northern Ireland are getting legal aid yet a private action against the IRA for Hyde Park, one of only two cases in GB, is not. Photo: PA Wire

In an article in the News Letter yesterday, the counter-terrorism litigation expert Matt Jury asked why the SNP was not helping the private action against the three Scottish soldiers murdered by the IRA in a honeytrap killing in 1971.

When we tweeted out the story (link to it below), there were forceful republican responses, as there always are to such stories.

A Twitter user said the young trio “should not have been in Ireland preparing to MURDER Catholics, their loyalty should to have been Scotland NOT England”.

Another Twitter user, with a Gaelic name, in response to Mr Jury’s question (why the SNP was not backing the case), said: “Maybe that’s because they aren’t fixated on the distant past, like you NI Loyalists.”

The point, not infrequently made, is that unionists are stirring up the past. But it is the opposite of the truth.

There has since the end of the Troubles been little mood within unionism to re-open the past or push for inquiries or prosecutions, even though republican terrorists killed by far the most people (2,100 of the 3,700 dead).

It is true that hundreds of relatives of victims (of loyalists and republicans) are seeking justice or truth or closure, but I think victims have been left behind because they are relatively few in number (almost twice as many people were killed on the roads between 1968 and 98 as died in the Troubles).

The crisis at the moment on legacy is because republicans are trying to change the narrative and to pursue the security forces.

Current legacy investigations are severely imbalanced. Yet when this is pointed out, politicians and even sections of the media insist, or try to show, that there is no such imbalance.

But there is, and if this is an issue that republicans want to prioritise, then quite radical measures are needed from the perspective of those of us who defend the state – and given the state’s record of overall restraint, that should include the political centre ground.

On Wednesday I wrote (link below) about how any DUP-Tory arrangement was so precarious, and the prospect of a Jeremy Corbyn premiership so strong, that the DUP might want to be modest in their demands and concentrate on preventing a fresh election.

I believe that even more now, given approval polling this week on Theresa May and Jeremy Corbyn (taken before he reacted sensitively to the Grenfell tragedy).

But legacy should be one of the few DUP demands. The Conservatives, and centre parties, should back them.

This week it emerged that another private legal action against the state for a Troubles killing has been launched . It is against the Ministry of Defence, the PSNI chief constable and the Secretary of State over the 1974 killing of John Patrick Cunningham by the Army.

A criminal prosecution into the killing of Mr Cunningham is already under way, in which a soldier, Dennis Hutchings faces attempted murder charge. A judge ruled that the charge should be struck out and that he should face a lesser charge, but prosecutors re-instated it. The case is ongoing.

There are now multiple private cases grinding through the Northern Ireland courts, most of them funded by legal aid, seeking remedies for alleged wrongdoing by the security forces during the conflict.

The cases include judicial reviews, they include private prosecutions of government bodies and they include civil cases for damages.

The SAS killing of eight of hardened IRA killers is subject of two private legal cases.

Meanwhile, not only is there minimal criminal progress against the 1,000+ unsolved terrorist murders, but no legal aid support to the few privately-funded cases against the IRA (there are only two – a discovery action into the 1971 murder of three Scottish soldiers and a civil action into the 1982 murders of soldiers in Hyde Park).

The imbalance in legal aid funding comes after £200 million has been spent on a public inquiry into 13 deaths at Bloody Sunday in 1972, which has led to a major criminal investigation that has taken up a major part of PSNI legacy resources.

The legal aid imbalance comes after the Labour government subverted the rule of law with its secret comfort letters to IRA suspects.

It comes amid relentless calls for a full public inquiry into the death of one Troubles victim, Pat Finucane, by nationalist parties and successive Irish ministers.

It comes as the Police Ombudsman continues to investigate historic allegations against the RUC – an Ombudsman’s office that, a High Court judge recently ruled, needs even more cash for probes than it gets now.

And it comes as the rest of the western world is refusing to tolerate a terror threat its own citizens, as massacres happen in a growing number of European cities.

Indeed, those populations demand to know why earlier action was not taken against Islamic massacre culprits when it later emerges that they were known fanatics.

That failure to protect the public from the worst terrorists is what happened through the Troubles: known fanatics, whose guilt the courts were unable to prove to the criminal standard, were free to kill.

Two things can be done, if a Tory government, propped up by the DUP, emerges.

The first is simple – a comprehensive audit of the public money spent on legacy each year since 1998 and how much of it has been pursuing allegations against the state. This must include a specific figure for the amount spent on legal aid on cases against the security forces.

The overall total sum of money spent on all investigations of the state must be made available to the British people in formats that are easy to understand.

The second is to have a hard think about Stormont House legacy structures.

Over the last month we have run a series of essays by the lawyer Neil Faris (link below), disputing the notion that separate legacy inquests into deaths at the hands of the state are the only way to resolve the UK’s obligation under Article Two of the European Convention on Human Rights (which protects the right to life).

Mr Faris explained the obvious injustice of special scrutiny to victims of state violence (at least 35 of 94 inquest dead were terrorist), when so many victims of terror have no justice – including those injured or whose livelihoods were ruined.

The essays were excellent, but I go further. We must explore the state’s failure under Article Two to protect those who died at the hands of known terrorists that the state was unable to apprehend because London would not countenance security measures that were unpalatable to nationalist Ireland.

Serious consideration also needs to be given to the Historical Investigations Unit, the key coming body that is to bring some balance to legacy or whether it will also turn against the state.

The government is trying to ensure it is balanced but Mr Faris wonders if that is possible. I am also worried by this talk of the state being responsible for 10% of Troubles deaths, as if the deaths were illegal. Most were not and some, like Loughgall, clearly unavoidable.

There is a risk that international investigators will want to earn their spurs uncovering ‘murky’ British doings, but have less inclination to go after ‘peacemakers’ and ‘freedom fighters’.

A Conservative government, propped up by a unionist party, has a chance to get this right and must do so.

• Ben Lowry (@BenLowry2) is News Letter deputy editor

Matt Jury: The SNP is not doing all that it can to help us uncover the IRA murderers of three Scottish soldiers

Neil Faris (final part of series – there are links to the earlier parts in this story): Too much focus on state victims could leave victims of terror with a deep sense of injustice

Ben Lowry June 14: The DUP should beware of hubris

Ben Lowry June 13: The extent of religious influence on the DUP vote is over-stated in NI let alone GB

Ben Lowry June 12: Make no mistake – Corbyn could easily become PM in a fresh election

Ben Lowry June 9: New influence for the DUP but it needs to tread with tact and caution at this perilous time