Book extract: Nationalist lawfare against the UK state is potentially limitless and it cannot lose

In the latest extract from a pro Union book, JEFF DUDGEON describes increasing use of the courts to advance the republican narrative:

By Jeff Dudgeon
Sunday, 12th December 2021, 10:33 am
Updated Sunday, 12th December 2021, 10:45 am
The courts, especially in Belfast, remain open to legacy cases against the state, generously funded by the state: judicial reviews, demands for re-opening of inquests, civil suits for damages, challenges on convictions, new inquiry requests, alongside police ombudsman investigations and Strasbourg cases
The courts, especially in Belfast, remain open to legacy cases against the state, generously funded by the state: judicial reviews, demands for re-opening of inquests, civil suits for damages, challenges on convictions, new inquiry requests, alongside police ombudsman investigations and Strasbourg cases

(Scroll down for further links about the book ‘The Idea of the Union’)

The Belfast Agreement released all paramilitary prisoners who had served two years in jail.

The prisoner releases did not disturb the European Court of Human Rights (ECHR) then, despite the degree of impunity involved, nor were they mentioned by its Human Rights Commissioner in a recent complaint about the new NIO proposals, which suggests that there is only concern about an amnesty if state forces might benefit.

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The front cover to The Idea of the Union: Great Britain and Northern Ireland. The book is edited by John Wilson Foster and William Beattie Smith. Contributors include Lord Trimble, Graham Gudgin, Ray Bassett, Mike Nesbitt, Jeff Dudgeon and News Letter editor Ben Lowry. There is a foreword by Baroness Hoey . As of late 2021, the book is available for £12.99 through Blackstaff Press and Amazon

Later concessions include the On-the-Run (OTR) letters of comfort for hundreds of IRA volunteers; an “amnesty” in relation to the use of forensic evidence on decommissioned weapons and the bodies of the disappeared; Royal Prerogative of Mercy pardons; prosecution indemnities for witnesses giving evidence at tribunals such as the Bloody Sunday enquiry; and the lack of investigations into the people involved in the 16,000 bombings and 37,000 shootings of the Troubles which did not involve deaths.

For some 50,000 people who were “only” injured there is to be no justice. Given the anticipated paucity of future prosecutions, except for Army veterans, we are already close to a full amnesty in all but name.

Few dare to speak that name, or its variants: drawing a line, a statute of limitations, and putting the past behind us, as happened in both parts of Ireland in the 1920s. But many of the politicians involved privately admit to wanting one.

Influential public figures in Northern Ireland who have openly supported an amnesty or variants include influential Catholics and nationalists: John Larkin QC who as Attorney General proposed a stay on prosecutions; former Assistant Chief Constable Peter Sheridan; Dennis Bradley of the Consultative Group on the Past; the former Director of Public Prosecutions, Barra McGrory. The former Lord Chief Justice Sir Declan Morgan called for further inquests to end after five years. Another notable advocate of an amnesty is Sir Desmond Rea, first chairman of the Northern Ireland Policing Board.

Jeff Dudgeon is a human rights activist and former Ulster Unionist Party councillor, who has advised the party on legacy

In 2005 Secretary of State Peter Hain introduced the Northern Ireland (Offences) Bill which provided for a “judicially based” amnesty for OTRs and others. The Conservative Shadow Secretary of State, David Lidington, called it “an amnesty in all but name” although Hain replied saying, “an amnesty is when you let people out”.

The deal in the Bill had been agreed with Sinn Féin, but when it transpired that it might apply to members of the security forces it foundered. The OTRs had to await another, secret operation put together by Tony Blair and Gerry Adams, involving 156 “letters of comfort” notifying IRA members that they were not wanted by the police for questioning.

After the existence of these letters emerged during the trial of John Downey in 2014, the Police Service of Northern Ireland revealed that 100 of those who received letters were suspects in 300 murder cases. The Commons’ Northern Ireland Affairs Committee (NIAC) investigated the scheme and concluded that it had “distorted the process of justice”.

After years of largely futile discussion, Northern Ireland’s political parties continued to disagree on how best to deal with the legacy of the Troubles. In an attempt to break the impasse, the Northern Ireland Office (NIO) in March 2020 proposed “a new independent body focused on providing information to families and swift examinations of all unresolved deaths from the Troubles; an end to the cycle of reinvestigations that has failed victims and veterans for too long; ensuring that Northern Ireland veterans receive equal treatment to their counterparts who served overseas.”

The NIO tacked on a reconciliation aspect, but nobody will be reconciled by one-sided, victim-focused justice. The mantra of “truth, justice and reconciliation” is a false god. Impartial professional historians alone can retrieve whatever can be established of the truth, while lack of evidence for prosecutions means that formal justice for the 3,500 families whose relatives were killed is impossible.

Throughout two decades of legacy recommendations, initiatives and proposed legislation, there has been an accelerating use of the courts to advance the republican narrative, assisted by legal aid.

This development has come to be termed ‘lawfare’, and its potential for expansion is limitless. It may be better than warfare, but it is politically debilitating for Northern Ireland. One wing of government, however, is not wedded to normal constitutional stability. We are told the Belfast Agreement brought peace, which is a myth that needs examined. The war ended because the IRA chose to end it, seeing a more promising path. Their demand for ‘all-party talks now’ within a ‘peace process’ proved to be remarkably perceptive.

That process is continuing, and in their view can end only with the demise of Northern Ireland. Unionism, in contrast, is about maintaining the status quo and minimising concessions. This is conservative territory which is generally unappealing to the young and woke.

The courts, especially in Belfast, remain open to judicial reviews, demands for the re-opening of inquests, civil suits for damages, challenges on convictions, requests for new public inquiries, all alongside Police Ombudsman (PONI) investigations and Strasbourg cases.

The value and cost of all this activity needs to be questioned, but it will take a brave government to put in place legislation to curb the lawfare industry.

A civil war was averted in the 30 years from 1969. No credit is given for that, certainly not to the security forces and their dead. Sadly, young people for the most part have little empathy for those families. Solidarity when shown is largely within the republican community who use law to achieve the ends once reserved to war.

During the printing of The Idea of the Union in July, the NIO published a Command Paper “Addressing the Legacy of Northern Ireland’s Past” which proposes an end to pre-1998 criminal investigations. This has appeased veterans in the short term but at the expense of a great deal of outrage from all sides.

Without, as proposed, also closing down inquests, civil suits, private prosecutions and judicial reviews, a no-prosecutions policy will do little to reduce the hurt over unfairness, the clogging of the courts or the enormous cost.

The basic problem will remain unless lawfare is limited. It can be done, but the NIO will have to steel itself, face down Strasbourg challenges and accept that to rule is to decide. There is no alternative coming from the local political parties.

The proposed alternative “truth recovery” bodies have the potential to be as toxic as continued criminal investigations if there are no cost caps or time limits. The notion of reconciliation is a dead letter even if regularly touted by the NIO. What is possible is a narrowing process. It appears to be under way and has to be supported so far as it goes.

Without a grand settlement, which is unlikely given the political nature of the process, the legacy debate will grind on. Nationalist lawfare cannot lose as the legal variants still remain limitless.

Non-nationalist lawfare, in so far as it exists, can call into question conventional legal wisdom on the requirements of the European Convention on Human Rights, but will London risk the wrath of Dublin and new legal challenges at Strasbourg?

On a more positive note, veterans have for the first time created a counterweight to the publicly-funded human rights industry.

Agreement to differ, putting the past behind us, is a better policy than well-funded politically-motivated archival archaeology supported by generously state-funded lawfare.

• Taken from ‘The Idea of the Union: Great Britain and Northern Ireland’ edited by John Wilson Foster & William Beattie Smith. Contributors include David & Daphne Trimble, Owen Polley, Baroness Hoey, Ben Lowry. Blackstaff Press, £12.99

• More on the book below:

• Extract from ‘The Idea of the Union’ Dec 4: London is a cultural capital for the Irish

• Book Review of ‘The Idea of the Union’ Nov 20: Unionist leaders should read this vital defence of NI’s place in UK

• Authors of ‘The Idea of the Union’ Oct 30: We probe Irish nationalist myths in our new book which defends the Union

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