Ben Lowry: Foster had good reason to be worried about legacy inquests

Arlene Foster, right, had justified concerns about the legacy inquests proceeding withouth a balanced package on legacy, and Theresa May, left, was also right to speak out about the current imbalance. It would have been a failure of leadership had they not done so
Arlene Foster, right, had justified concerns about the legacy inquests proceeding withouth a balanced package on legacy, and Theresa May, left, was also right to speak out about the current imbalance. It would have been a failure of leadership had they not done so

The dominant voices when it comes to examining the legacy of the Troubles are often neutral in their assessment of the past roles of the security forces and the IRA.

This is true of many human rights activists, pressure groups, academics, and commentators.

It will be the ultimate moral surrender by the state if the killings of the IRA gang stopped by the SAS at Loughgall in 1987, above, get greater scrutiny than the 50+ people, mostly border Protestants, they murdered

It will be the ultimate moral surrender by the state if the killings of the IRA gang stopped by the SAS at Loughgall in 1987, above, get greater scrutiny than the 50+ people, mostly border Protestants, they murdered

That stance might sound reasonable enough, given that political or journalistic or investigative neutrality is generally a good thing. Legal neutrality is essential.

But few people would be neutral between, say, the French authorities and Isis, as the former tries to thwart terror attacks by the latter.

Neutrality therefore is a matter of degree and something that changes from time to time.

Note for example, how the use of the word ‘terrorism’ is decreasing in the media with regard to the Provisional IRA, but is still used routinely in relation to dissidents.

Ken Funston, whose brother was murdered by the IRA, addresses Saturday's seminar on legacy legislation at Malone House, Barnett Demense, Belfast

Ken Funston, whose brother was murdered by the IRA, addresses Saturday's seminar on legacy legislation at Malone House, Barnett Demense, Belfast

At this newspaper we use the word terrorist, because we do not want to lose sight of the fact that that was the legal assessment of the Provisional IRA campaign at the time, and was accepted almost unequivocally in the Republic of Ireland and across the western world.

Indeed allies of the UK have since the 1994 embarrassed London by seeking to pursue past IRA terrorism when the UK itself seems in no hurry to do so.

This view that the IRA was terror had cross-party acceptance at Westminster. Jeremy Corbyn’s apparent ambivalence on the matter put him in a small hard left minority in the Labour Party in the 1980s.

This trend towards neutrality on the IRA is why I was pleased to accept an invitation to speak at a conference on the subject last Saturday at Malone House in south Belfast.

The European Court of Human Rights at Strasbourg

The European Court of Human Rights at Strasbourg

Despite heavy snow, and after attending the funeral that morning of my uncle John Lowry from Saintfield (well known as a surgeon and in equestrian circles), I attended the afternoon part of the seminar.

It was arranged by Jeff Dudgeon, the Ulster Unionist councillor, and included contributions from the barrister Austen Morgan, the ex special branch detective William Matchett, the lawyer Neil Faris, the IRA victim Ken Funston, and the ex UUP MP Danny Kinahan.

They have all been critical of the imbalance against state forces in recent legacy probes. Even a man as moderate as Trevor Ringland has become outspoken on the imbalance. He spoke too on Saturday.

I began my address by saying that Jeff was a fit man to host the event. He led the 1970s bid to decriminalise homosexuality in NI.

We are now in a political climate in which opponents of same-sex marriage are becoming isolated. But it was almost the opposite in 1982 when homosexuality was decriminalised, and the big political parties wanted it to stay an offence — in theory subject to long jail terms.

But Jeff, I said on Saturday, knew the distinction between key human rights and the ‘human-rights-for-murderers’ mindset of some of the loudest voices on legacy matters.

He was a member of the UUP Haass talks team and has been scathing about the Stormont House structures that, he said in a blistering recent News Letter opinion piece (see link below), will “enable the rewriting of history and the creation of moral equivalence between paramilitaries and the state, at a huge cost”.

In my talk, I said that the sweeping definition of collusion is leading a new generation of people into thinking that the RUC and army engaged in wholesale murder when in fact they prevented such.

The heavy focus on collusion, and the misleading application of the word, is the biggest factor in the rehabilitation of the IRA, I said.

Among the other points I made was that it would be the ultimate moral surrender by the state if the killings of the IRA murder gang stopped by the SAS at Loughgall got greater scrutiny than the 50+ people, mostly isolated border Protestants, that the worst members of that fanatical republican brigade had massacred over the years.

A legacy inquest into those killings moved a step closer this week when a judge ruled that Arlene Foster unlawfully stopped her cabinet discussing a funding plan aimed at clearing a backlog of inquests.

Sir Paul Girvan’s High Court judgement in a bid to get an inquest by Brigid Hughes whose husband Anthony was caught in the cross-fire at Loughgall, was long and complex.

He acknowledged that the court cannot direct government departments how to spend public funds.

He also acknowledged that the European Court of Human Rights (ECHR) accepts that proportionality considerations have a role “in what is demanded of state authorities”.

And Sir Paul noted that the various parties to the Loughgall legal action “did not demur from the proposition that each of the legacy inquests could cost over £1m”.

But even allowing for these caveats, the ruling means that the pressure on the government to roll out these inquests is now immense.

In any event, both London and the DUP seemed prepared to give them the go-ahead recently.

It was this newspaper that revealed that around 40 of the 92 then inquest deaths were terrorists.

More than £50 million could be spent on these 92 cases, perhaps more than £100m. There might one day be many more inquests than the 92.

Arlene Foster, Theresa May and James Brokenshire have been justified in voicing concern at legacy probe imbalances. Indeed, it would have been a leadership failure not to do so.

There is now am urgent need to clarify the cost and limit of these inquests.

Almost everyone agrees that historic killings by the state need an Article Two (of the ECHR, which protects the right to life) compliant investigation.

But legal voices, such as those of Mr Faris (who highlighted the obvious injustice of victims of the state getting greater scrutiny than the many other victims) did not prevail at Stormont House in 2014.

He has pointed out (see link below) that the Council of Ministers of the Council of Europe was prepared to consider a more proportionate response in terms of cost of investigations.

When senior Tories have wondered whether the UK should quit the ECHR, given how dated it is and prone to manipulation by terrorists, supporters of the court have said it is in fact a pragmatic body.

Would it not be good therefore to see a Northern Irish legacy case before it, and a UK government arguing to its judges the unique (for a western European government) situation in which it finds itself, with pressure from pro terrorist factions to devote huge resources to investigating state killings when so many more deaths are unresolved?

It is misleading to say that killings by terrorists have already had scrutiny. Many, particularly in the early 1970s, had cursory investigations at a chaotic time.

Saturday’s event heard from Anne Graham, whose lawyer brother Edgar’s 1983 murder at Queen’s University by the IRA was the epitome of terror. She was contemptuous of the Historical Enquiries Team investigation of his shooting.

We now need much greater clarity on the likely costs of the Stormont House bodies.

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

Jeff Dudgeon: BBC failed to provide detail on key Loughinisland ruling

Neil Faris: Too much focus on state Troubles victims could leave the many victims of terror with sense of injustice