Ben Lowry: A major political row is brewing over legacy

Doug Beattie MC MLA, one of the most outspoken unionist politicians against plans to deal with the legacy of the Troubles, said something that is worth recounting at length:

‘... we were told before Christmas that legacy would not form part of the deal, and even when announcements was made that there would be legislation to protect the veterans, we raised it again with secretary of state, and he said don’t worry, it will not be part of the deal.

‘And likewise after Christmas when the negotiations got intensive we asked the secretary of state on multiple occasions whether legacy would be part of the deal, and he said, no, it will not, we will look at it after the deal has been secured.

‘And even the day when I was sitting at all round party table talks, when the secretary of state leaned across me to Gerry Kelly, and said to Gerry Kelly ‘we need to talk about specifics on legacy after this meeting’ and I said to him 20 minutes later, I had overheard what he said he said, don’t worry legacy will not be part of this deal.

‘And yet we were bounced when legacy clearly appeared as part of the deal ...’

Perhaps Julian Smith will come forward with a different version of events. If not, it is a remarkable to think that the secretary of state was having such discussions with Sinn Fein.

It was surprising that legacy was in the deal because it was understood that it was not part of the talks. That was the understanding of a number of us journalists who follow the matter, and it was the understanding of various participants to the talks.

Yet not only is it part of the deal, legislation will come forward within 100 days. Leo Varadkar and Simon Coveney have made clear that they see this as a binding UK commitment.

The deal says legacy will need the consent of MLAs but little explanation of how that will be measured.

DUP sources are relaxed about this and say that the required Stormont support will not be forthcoming from them if legacy is unbalanced.

But victims and security force people I have talked to are not relaxed about this UK pledge, and will be all the less so after Mr Beattie’s claims.

In a weekend twitter a user asked the DUP if they back a legacy plan for a non criminal police misconduct element to the planned Historical Investigations Unit (a unit which itself is controversial because critics say it accepts a nationalist premise that the PSNI can’t be trusted to police legacy).

The Police Federation and Retired Police Officer Association see the plan as an outrage, because ex RUC alone will face probes for past ‘misconduct’.

Sir Jeffrey Donaldson tweeted in reply to the query: ‘No. If retired police want this power to remain indefinitely with the Police Ombudsman where it currently resides, we are happy to comply with this. Although we have little confidence in the way the Police Ombudsman uses this power. #Loughinsland’

At the launch of the DUP manifesto, I asked the party about the misconduct plan. Arlene Foster said: ‘We are very clear that any historical investigations unit should not have the power to look at non criminal actions by former police officers. The ombudsman does not have the power to do that, why in heaven’s name would any unit that was constructed have the power to do that?’

Contributors to our 2018 Legacy Scandal series of essays explained on these pages why they think the police misconduct idea is a grave injustice that will facilitate a ‘hunt for collusion’.

Sir Jeffrey is making clear that the DUP will back police if they want to maintain the current system in which the Police Ombudsman investigates the RUC in historic cases.

It is not a palatable choice: that ex police face a system in which the DUP has no confidence or an even more powerful one critics say is a disgrace.

Meanwhile. there is an unresolved court case on the Police Ombudsman report into the 1994 Loughinisland massacre. In what the security forces see as one of the only major legacy court rulings in their favour, Mr Justice McCloskey tore into the report.

The judge said the findings of collusion was “unsustainable in law,” that its authors were “thoughtless and inattentive in the language and structuring of the document” and that the RUC officers were “in effect tried and convicted without notice in their absence”.

Then, extraordinarily, Mr Justice McCloskey stepped aside after being accused of bias, which he fiercely rejected. Mrs Justice Keegan heard the case and issued a ruling that read as if the McCloskey ruling never existed.

The ex RUC challenged her ruling and it was heard by appeal judges almost a year ago, but is still undecided.

Yet the government is charging ahead on legacy. A colossal £250 million pledge for the plan was slammed last night as inadequate by the Sinn Fein finance minister Conor Murphy.

On Tuesday on Channel Four News the Tory MP James Gray said that backbenchers would not accept it if every historic army killing was to be investigated — but that will indeed happen under the Stormont House plan.

A mammoth row is brewing.

You wonder if Boris Johnson knew what was agreed in Belfast last week.