In the first part of an interview, Northern Ireland’s top judge Declan Morgan is asked by Ben Lowry about perceived imbalance on how the past is tackled:
The legacy of the Troubles was not initially cited by Sinn Fein as one of the party’s original red lines for the restoration of the devolution that it collapsed in 2017.
Latterly, it has begun to demand implementation of the 2014 Stormont House Agreement structures for dealing with the past.
Throughout, however, republicans insisted on funding for so-called legacy inquests, in around 50 outstanding cases involving 90 or so deaths.
The lord chief justice of Northern Ireland, Sir Declan Morgan, in post now almost a decade (see story linked to below), had urged politicians – for example in a speech at the start of the 2016 legal term– to fund a unit to process the inquests.
The DUP came to be blamed for blocking the inquests, but other voices were concerned about the hearings (see panel below).
We wanted to ask Sir Declan about the perhaps unprecedented situation in which someone in his position was repeatedly cited by a party to justify their political demand.
Sir Declan agreed to our request for an interview, which we wanted to be principally on legacy. It took place last month at the High Court.
“I think just to get the context right,” he says in that interview when asked about the inquests, “the coroner’s service was, up to November 2015, entirely under the control of the Department of Justice.”
He had no role. Now he leads the coroners (the service remains in the department).
Sir Declan says he relayed to the then justice minister, David Ford, concerns about the context of the change: “I thought, if I was to be appointed, it should be in circumstances where the government had decided that it would observe the legal requirements which were imposed upon the coroners.”
“I saw it as a rule of law issue,” says Sir Declan, using a phrase he deploys repeatedly, ‘rule of law’.
Despite his concerns, he was appointed. “I set about seeking to discharge that legal duty.”
Since 2010, he explains, inquest cases have been forwarded to the coroners by the attorney general, John Larkin.
“Of the 54 cases that are part of the legacy bundle, 32 were cases that were sent to the coroners by the attorney general and one, the Loughgall case, by the advocate general.
“As a matter of law, as Lord Justice Girvan has found, and that always seemed to me to be the position, there is a legal duty to proceed with expedition in relation to those cases.”
Sir Declan is talking about a sample case on Loughgall, but with wider implication, that the failure to fund it puts the UK in breach of Article Two of European Convention on Human Rights (ECHR), protecting right to life.
“So, it’s not a matter of politics as far as I’m concerned, it’s a rule of law issue,” he says.
But is it not a legal point that has ends up having political implications?
“Oh there is no doubt it has political implications ,” Sir Declan concedes, “but from my point of view, in front of everything becomes the rule of law.”
What about the fact that this led to one party, Sinn Fein, repeatedly citing him in a standoff?
“Unfortunately, my experience is that political parties will use things that I do or say to support whatever political cause they think it will actually help with,” he answers.
“I was conscious that there would be a perception that I had formed a political view about how issues of the past should be dealt with. I have tried –I think probably it’s difficult in this society to do this successfully– to make it clear that I hold the office of lord chief justice, my obligations are to support the rule of law.”
But Sir Declan notes that Lord Bingham’s book “on the rule of law” quotes a 17th century chief justice saying ‘be you never so high that the law is above you’.
“I seek to hold true to that requirement and made it clear to the politicians that if this wasn’t working for them then it was their responsibility to think about how the law should be changed.”
What does Sir Declan think of the costs, £1m per inquest?
“It is, it’s £54m, just over £20m of that will be spent on the coroner’s service, doing the work on disclosure etc, over £20m will go to police.”
Sir Declan says “if it was really intended to proceed with a HIU [Historical Investigations Unit]”, a virtual database might help other investigative work into the Troubles.
What about concerns that the inquests have become mini-inquiries, notably Ballymurphy, but perhaps also future ones on a smaller scale?
Sir Declan says the government, not judges, passed the Human Rights Act, incorporating ECHR. In deaths involving the state, “you had to look at the broad circumstances in which they met their death,” not just the specific cause.
But did Europe envisage a situation such as Ulster? Does Article 2 risk an injustice that state forces, who were thrown into a chaotic situation, are judged too exhaustively?
Sir Declan points out that, unlike in England, NI attorney and advocate generals can forward a case on their own.
“I’m not sure what obligations the attorney might consider himself under in relation to sending the cases to us, but there was undoubtedly open a political choice to deal with this issue in a completely different way.
“Article 2 is not confined to public inquiries. There are myriad different ways in which one could have attempted to satisfy the Art 2 requirements in Northern Ireland in conjunction with all of the other victims who have been left without a commitment for so many years as to how their interests are to be protected.”
It has bred “distrust”.
“I don’t blame just the politicians, our society hasn’t found a way to grasp that.”
When Sir Declan talks of myriad other ways to meet Art 2, does he mean pre Stormont House? “The political opportunity was there in 1998. The Good Friday Agreement is forward looking. It didn’t deign to deal with the past at all.”
What mechanism can stop the system being overwhelmed? For example, could 500 inquests be ordered?
“I can’t predict what the attorney will do, but I am conscious of the fact that the attorney, after a period of a couple of years when we’ve had nothing referred, has this year referred three cases. Once cases are referred, we’re under the same legal obligation in relation to them as the others.
“So again, it’s a matter for the legislators to work out what they want to do but you’re right that people need to recognise what the consequence is of the legislation that they pass.”
Was it not wrong that a civil servant approved contentious inquest funding?
“If he didn’t approve it he would’ve been acting unlawfully, so it wasn’t that he made a political choice. He observed the rule of law.”
But politicians might have appealed the Girvan ruling? “They might have done, but as the law stands, if the politicians had failed to deal with it, they would not have been observing the rule of law.”
• This newspaper’s Stop The Legacy Scandal series included essays from some lawyers and politicians on how the legacy inquest process was imbalanced against the security forces. While the BBC ran a documentary examining the failure to hold the inquests, this newspaper was almost the only media outlet to examine the other side of the debate. Our analysis of the 92 dead showed that around 40 were terrorist. This threw up anomalies such as the fact that the deaths of a notorious IRA gang shot dead by the SAS as it attacked Loughgall police station in 1987 would get greater scrutiny than their scores of victims
• On Monday: Sir Declan responds to Trevor Ringland on unsolved security force deaths