Ben Lowry: After years of warnings about the distortion of the past, we are still heading towards a legacy process that will vindicate the IRA

This is all happening with inadvertent unionist assistance.

The present scandal is that investigations into the past have turned hopelessly against the security forces who prevented civil war. Republican terrorists who killed by far the most people in the Troubles enjoy a de facto amnesty.

The Irish government, which for 25 years refused to extradite known IRA killers from their territory, as a result of which many border Protestants died, have been relentlessly scolding the UK for its winding down legacy probes.

Yet, incredibly, after years of such Irish pressure to investigate allegations against the British state forces, London has still not come up with a single legacy process that will shed light on Ireland’s role in the bloodshed on this island.

The UK at times seems to see what is happening in legacy, such as lawfare – a deluge of inquiries into and claims against the security forces. This is why it has of late tried to minimise legacy. So why do I say that legacy might get worse?

Let me first recap on how bad legacy currently is.

Investigations into the Troubles have overwhelmingly been sub criminal probes into allegations against the security forces: civil actions against state forces, huge inquiries costing many millions into Bloody Sunday and Ballymurphy, hundreds of historic Ombudsman cases against the RUC, and more than 100 legacy inquests, almost all of which are into killings in which the security forces are implicated.

There was a multi-party agreement on how to tackle legacy in 2014 called Stormont House, which would have created a huge new body called the Historical Investigations Unit (HIU). Given that republican terrorists killed by far the most people in the Troubles, 2,100 out of 3,600, victims of the IRA hoped that it would bring balance to probes. But after that deal a number of groups became concerned that the HIU itself would turn on the state because:

• The HIU had a major component so that ex RUC alone would face probes into past misconduct (as opposed to crime). This would facilitate a ‘hunt for collusion’ yet terrorists would not face probes into atrocities in which many people were injured or had their businesses destroyed but in which no-one was killed • The state forces had records, the terrorists kept none • The deluge of aforementioned inquiries and inquests and probes into the security forces would lead to information that would trigger disproportionate criminal probes into them

It was when London began to see how legacy was panning out in 2018/19, with numerous soldiers heading to trial, it began to turn away from the Stormont House model and instead tried to shut down legacy.

This led to the current legacy bill which is before the House of Lords this coming week, in which there is a supposed amnesty. But, under pressure from Ireland, America and many others, the UK has begun to crank up its mooted legacy structures.

Now the worst of all worlds is likely to emerge, in which there are no prosecutions but in which there are a raft of sub criminal probes which examine security force killings out of context and destroy their reputation. The IRA will be disappointed that no more soldiers are tried, but will be privately delighted to be formally exempt from prosecution, as opposed to informally so. They also know that the security forces are most vulnerable to sub criminal probes.

These sub criminal probes will be carried out by an Investigations Commission which is becoming similar to the ditched HIU plan.

Why do I say that unionists are partly culpable for this looming disaster? Because they have been haranguing the government’s ‘amnesty’ without doing two things.

First, they have not distanced themselves completely from nationalist opposition to the bill, and so unionist opposition is cited by critics such as the recent UN report to imply that everyone is agreed against the UK. Yet all these overseas critics are pushing the same sort of legacy solution which Irish republicans demand.

Second, unionists have not engaged with the truth that for umpteen reasons the IRA will not face serious criminal scrutiny, so it needs to ask which is worse: an amnesty, or disproportionate prosecutions of police and army.

It need not have been such a disagreeable set of options, if London had had the resolve to chase the IRA in the way republicans are merrily prepared to (and allowed to) chase the security forces. But there is no such resolve, and (I have concluded) never will be.

I have written here about things that could be done, above all London unilaterally launching multiple sub criminal inquiries into the IRA to balance those into the state. It is easier to find against someone in a sub criminal probe, so if the state is going to face them, so too must terrorists.

Another thing that I have suggested, but which has never been taken up by unionists or by London, is that the government launch a high level review involving judges, examining the many reasons why legacy has panned out in the anti state way that it has done. I think it might reach interesting conclusions.

Almost alone, this newspaper has carried key voices on the legacy imbalance such as the academic Dr Cillian McGrattan, the barrister Austen Morgan, the human rights activist Jeff Dudgeon and (again this week, see links below) the lawyer Neil Faris (see below links to a sample of their essays).

They are all warning that we are heading again down a road that will end up vindicating IRA terror.

Will anyone finally listen?

Ben Lowry (@BenLowry2) is News Letter editor

Ben Lowry January 14: UK-EU deal might be near but Stormont set to stay in stalemate

Neil Faris January 20: Government set to repeat mistakes of Stormont House deal on legacy

Neil Faris January 19: Naming and shaming of people on legacy could divide NI if 'unfair'

Neil Faris January 18: The legacy bill will give excess power to Troubles investigators

Jeff Dudgeon to European commissioner: You criticise UK for amnesty but not for past ones which benefited terrorists

Austen Morgan on how the significance of the Supreme Court ruling on the hooded men was widely missed

Cillian McGrattan: Rewriting the troubled past

Ben Lowry January 14: January is one of the less depressing months of the year