Ben Lowry: This week’s extraordinary civil service decision to fund Troubles inquests has worsened the legacy scandal
Late last year this newspaper ran a series called Stop the Legacy Scandal, as most of our readers will have noticed.
We did so because the overall legal, political and media focus on the past had (we and our contributors believed) become so one-sided against state forces, that we wanted to give space to the other viewpoint.
After all, republican terrorists had murdered 2,100 of the Troubles dead. Loyalists had murdered 1,100 of the dead.
And the majority of the 360 or so killings by state forces were carried out by the Army at a chaotic time, pre 1975.
By the late 1970s the security forces were much better trained.
Yet the Troubles continued for another two decades in a sustained paramilitary campaign that used varying types of terror: Bombing Belfast city centre, targeting security force members, targeting politicians, targeting judges (particularly Catholic ones), then when that failed, targeting civil servants and those who supplied the security forces.
It all failed, until the IRA stumbled upon a tactic that worked a treat — bombing the City of London in 1993 and then, when the 1994 ceasefire had not got the political reward they felt it should get, Canary Wharf in 1996.
Yet there has been in latter years little mention of this long history, and such a focus on state killings, and in particular on alleged collusion, that it was making it seem as if the IRA onslaught was necessary.
Our series touched a nerve, because we were pleased at the range of names who wrote for it. There is a deep reluctance among people who served the British state in Northern Ireland during the Troubles to speak publicly in favour of the state, such is the risk of being deemed a ‘bigot’ or a ‘securocrat’.
But numerous contributors came on board as they saw the series unfold and it lasted almost a month longer than we first envisaged.
Politicians, victims of terrorism, ex police leaders, former Army generals, ex intelligence personnel, ex paramilitaries, academics, commentators, churchmen, lawyers and others all took part.
The premise was simple: that the contributors believe that the state, for all its failures, did more good than bad, and that any legacy process that does not ultimately reflect that will have failed.
Their combined essays form a notable part of the history of the Troubles (see below a link to our series).
Among the many concerns about the imbalance over the past, such as the obvious concern that state forces had records and are much more vulnerable to investigation than terrorists, was a concern at the process of ‘legacy inquests’.
Discussion about these inquests can quickly get bogged down in technical jargon about ‘Article Two’ of the European Convention on Human Rights. Suffice to say that there are around 90 deaths eligible for such inquests, and most of them relate to killings in which state forces are said to be implicated. Around 40 of the dead were terrorist.
A major problem with the inquests is their cost, at around £1m each (although some inquests will deal with more than one death so the final overall cost is set to be around £55 million).
We have been repeatedly told that these inquests must happen, but not why they must be, in effect, mini inquiries at such expense.
Granting them throws up the grave injustice that in many cases the deaths of the terrorists will get a greater scrutiny than their victims.
In fact a key case that found that the government was in breach of its duty to hold these inquests was taken with the regard to the 1987 Loughgall shootings.
The case was taken on behalf of a widow of the innocent man who was tragically killed when the SAS stopped a notorious IRA murder gang as it blew up a police station.
This then means that that gang, some of whom were, as the RUC detective Norman Baxter described Jim Lynagh, “serial killers” will get greater public funded scrutiny than the dozens of people they killed.
But step back from that obvious injustice, for those victims, and think of the wider one.
The number of IRA volunteers was large but the number of serial killers in the Troubles was small. If Britain had been remotely brutal, those worst killers would have been ‘taken out’.
Instead, the system — unable to convict these men to the criminal standard — had to grant them their freedom, which they used to kill and kill and kill again.
In other words, their victims died because the state was so careful to adhere to the rule of law and ensure the rights of their killers.
Now, not only is that narrative inverted, the failure to challenge the inversion lets it stand and helps fuel the disproportionate scrutiny.
So while there are strong and plausible arguments in favour of these inquests, there are strong and plausible arguments against them happening in this style and on this scale. Or not unless there is a commensurate funding for other deaths on a roughly pro rata basis.
But for that to happen, for the 1,000+ unsolved terrorist cases to get such scrutiny would mean £1 billion or more of funding.
And then, this week, despite the reservations and concerns, so carefully outlined in our series, a civil servant announced that these inquests were going ahead. That £55 million would be allocated to them.
He cited the Loughgall court case, but that was a court case that there was no minister around to appeal (as it should assuredly have been appealed).
Have not our courts being examining this very issue of whether or not civil servants can make major decisions and ruling that in some cases they cannot?
And why has this happened when the consultation on legacy structures to deal with the past, which has been overwhelmed with public responses, has not yet reported back?
And why has a Tory government, propped up by the DUP, been almost mute about this week’s extraordinary announcement, with the latter vaguely referring to a need for balance in legacy?
But what happened this week was much worse than just a decision to fund a certain number of cases in an imbalanced way.
It makes it almost essential that some other structure is set up to give redress to the vastly greater number of victims of terrorism who are seeking redress.
And there is no other such body than the mooted Historical Investigations Unit.
Go to our essays, and read some of the articles on that proposed body. See what the Police Federation and retired police and the lawyer Neil Faris and others say about how that very body, yes the HIU, could itself turn against ex RUC.
Don’t you see why we have been referring to the ‘legacy scandal’?
• Ben Lowry (@BenLowry2) is News Letter deputy editor