On BBC Spotlight this week, Martin McGuinness spoke in favour of the lord chief justice’s appeal for funds for a plan to hold legacy inquests.
Sir Declan Morgan has put forward proposals on how to progress with the inquests, which need to be held under Article Two of the European Convention on Human Rights, which concerns the right to life.
The inquests are mentioned in conjunction with Article Two because they mostly involve alleged failures by the state to protect life (typically Troubles killings by state forces).
Spotlight showed a clip of Arlene Foster being challenged in an election debate on the failure to approve inquest funding.
The first minister replied that she wanted balance on legacy issues, and that the DUP would not permit any rewriting of history.
Mrs Foster did not agree to be interviewed for the BBC programme but Mr McGuinness did.
The Sinn Fein deputy first minister told Spotlight: “I would be concerned that anybody would think that the lord chief justice is interested in rewriting the past.”
This is plainly true. No sensible person would think such a thing of such a respected judge.
Sir Declan is making a narrow and specific argument for funding to complete inquests on which there is a legal obligation on the state. He has been careful to point out that the plan includes a model for dealing with vast amounts of data that could assist the coming Historical Investigations Unit (HIU), that will investigate Troubles killings, most of which were by paramilitaries.
But while he is steering clear of a political debate, an important such debate does follow from any plan to prioritise the inquests. Jim Gibney in the Irish News also recently cited Sir Declan’s position with approval.
Imagine a mirror image situation had arisen on how to proceed on a legal obligation and that a leading judge had come up with a plan to meet the obligation – a plan that the DUP was keen to endorse, but with which Sinn Fein was unhappy.
Sinn Fein is not slow to imply discrimination and would surely do so if it disagreed with a solution put forward by a British judge.
As recently as July 1997 republicans had such contempt for judges that the Provisional IRA considered them legitimate targets. Justices were murdered, including Maurice Gibson and William Doyle.
That history is relevant, because this is a debate as to how the past is investigated.
Some of us who believe that the state overwhelmingly adhered to the rule of law, as overseen by predecessors of the Cambridge-educated Sir Declan, judges in the same distinguished mould, are increasingly troubled by how fast that truth about the maintenance rule of law, all the way through the Troubles, is being lost in time.
The Stormont House Agreement mooted legacy institutions including an oral history archive and an information retrieval commission. But it was a third mechanism, the HIU, successor to the Historical Enquiries Team (HET), that was cited by the justice minister, Claire Sugden, when Alex Kane interviewed her in this newspaper on Monday.
The HIU is often thought of as balance to the inquests but I fear it will not be so.
Republican paramilitaries were by far the most violent bloc of actors in the Troubles, carrying out 2,100 killings. A high percentage of these did not result in convictions, partly because terrorists became so accomplished at what they did.
The HIU will have a vast amount of material to assess. My fear is that the HIU will find it easier to pursue perpetrators such as the Bloody Sunday soldiers, who can be more easily traced than past paramilitaries. It might end up pursuing leads from the legacy inquests.
Meanwhile, the HIU will find evidence of failures in the initial police investigations into the thousands of acts of terror it is examining, due to factors ranging from incompetence to the sheer pressures on detectives during the Troubles.
We could end up in a situation in which the security forces are pursued for those investigative failures.
There will probably be a handful of cases in which enhanced forensic technology results in prosecutions of terrorists, but it is entirely possible that the state will emerge worst out of HIU.
That would then mean that the state is under scrutiny on numerous fronts:
• Investigated by the Police Ombudsman in historic cases (subject to a sweeping definition of collusion)
• Investigated at the instigation of prosecutors (in cases such as Stakeknife and the Tighe shoot-to-kill case)
• Sued, funded by legal aid, by past terrorists for various torts
• Investigated in the legacy inquests
• Also investigated by the HIU
In republican massacres including Omagh, Teebane and Kingsmills there are allegations of state failures to prevent or properly investigate the atrocities.
Indeed state failure seems to be a reason why Kingsmills is the only IRA atrocity included in the legacy inquests. Similar claims of state failure have emerged over the Shankill bomb. The focus in such heinous crimes is shifting to the state as if it and murderer share culpability.
The state should of course be held to a much higher standard than terrorists.
But what if the terrorists, who killed by far the most people, are barely investigated at all?
How does the context of security force failures get explained?
How does the story of their countless successes, often unknowable (the many people who were not killed, thanks to painstaking work), get told?
How do you prove overall state adherence to the rule of law?
This is a huge matter.
Mr McGuinness on Spotlight put the main blame for stalemate over legacy inquests lay on London. This might have been a diplomatic bid to avoid a row with his coalition partners.
But my sense is that the concern as to how the past is being handled is much wider than the DUP or the NIO.
One of the most vocal critics of the prioritising of legacy inquests has been Trevor Ringland, the former Ireland rugby international who has dedicated a fair proportion of his life to reconciliation.
His unionism is so moderate that he has moved away from parties that are unionist with a capital ‘U’.
And yet Mr Ringland is among those who are increasingly bothered about the heavy focus on the state.
It is crucial that people such as him, who could never be accused of ambivalence about loyalist terror or state brutality, are speaking out.
The legacy inquests will cover 98 deaths. Among them are IRA fanatics such as the murder gang ambushed by the SAS as it attacked an RUC station at Loughgall.
Most of the deaths, however, are of innocent victims such as the GAA man Sean Brown, targeted by loyalists, or people who were in the wrong place at the wrong time, perhaps killed by the British Army.
These are tragic cases, but dwarfed by far more unresolved terrorist cases – cases which might have had only a cursory inquest and criminal investigation at the time.
A thought on Article Two: IRA victims groups should explore if any QC believes that the inability of the British state to protect their loved ones’ lives was a failure under that provision.
After botching interment in 1971, British governments of every shade, including one as allegedly authoritarian as Margaret Thatcher’s, accepted that nationalist Ireland would not accept internment and so never attempted to introduce it, not even in the 1990s when their intelligence was so much better.
A consequence of that restraint was that civilians were murdered who might have survived had some of the most dangerous known terrorists been detained.
Most legacy inquest cases deserve scrutiny (although who would be upset if the Loughgall gang was not among them?).
But 1,000+ other cases deserve commensurate scrutiny, and how that might happen is still far from clear.
• Ben Lowry (@BenLowry2) is News Letter deputy editor