Look again now at the legacy commission

While the past should not nor cannot be forgotten as Eamonn rightly says, the question is how best to deal with it. Reconciliation or justice? appears to be the choice before us if moves towards winding down legal process gain traction.  It’s no easy decision and advocates of further legal action have by no means lost the battle. Saville’s para 4.7,  in which he’s unable to confirm or deny the existence of  a “culture” of impunity towards the army may have whetted the appetite for opening new inquiries into incidents like the “Ballymurphy massacre” and others.

…. it was alleged that before Bloody Sunday there were many previous unjustified shooting incidents by soldiers in Northern Ireland. As we pointed out in the course of the Inquiry, it was simply not possible to take this submission of an established “culture” forward, for this could only be done by examining in the same detail as Bloody Sunday the circumstances of each of those incidents, in order to decide, among other things, whether or not they involved unjustified firing by soldiers. In our view this would have been a wholly impracticable course for us to take, adding immeasurably to what was already a very long and complex inquiry.

In the Guardian the former police ombudsman Baroness Nuala O’Loan argues for  an alternative legal process, short of a new Saville:

The revelation that the then attorney general had stated that soldiers would not be prosecuted in respect of incidents that occurred while they were on duty; the fact that deaths and serious injuries caused by soldiers were effectively investigated only by the military for years (with no obvious outcome); the cover-up of the Bloody Sunday events; and the bizarre events surrounding the Stalker-Sampson inquiries  all encouraged the suspicion that the state would not be accountable for the actions of its agents. The activities of paramilitaries, both loyalist and republican, have in many cases not been properly dealt with.

After Saville, there will inevitably be calls for further inquiries, for instance into the case of the 11 people who were shot dead by the Paras in Ballymurphy in 1971 . What is now essential is the creation of a single, impartial, independent investigation office to deal with all the outstanding cases of the past. Properly funded and empowered for whatever period is necessary, working with full governmental co-operation, it could, in a much more cost-effective manner, deal with such cases.

 She herself examined “ shoot to kill” which was also the subject of rulings of human rights violations at the ECHR. As Blubber noted, a further major step was taken last month, when the High Court ruled  that the Stalker and Sampson reports should be released at last after a long record of harrassment, suppression and watering down.   The courts now seem to be moving decisively in favour of disclosure for its own sake and an aid to inquests delayed for decades.

Adds. The case of Michael McGreanery shot dead by the army in September 1971,  is the one referred to above by Lady O’Loan. It resulted in  the Attorney General’s ruling that soldiers should not be prosecuted  in respect of onb-duty incidents. The McGreanery case is  the subject of an HET report which the Independent on Sunday has seen.

The report, from the Police Service of Northern Ireland’s Historical Enquiries Team (HET), reveals how the chief of what was then the Royal Ulster Constabulary (RUC) in Londonderry recommended that the soldier who fired the fatal shot be prosecuted for murder. But this was overruled in December 1971 by the province’s attorney-general, Basil Kelly, who rejected any prosecution on the basis that the soldier was “acting in the course of his duty”.

The Indy Sun report adds that ” Sir Alasdair Fraser, Director of Public Prosecutions for Northern Ireland, will meet Northern Ireland’s new Chief Constable, Matt Baggott, tomorrow to discuss how police investigations might help future prosecutions.”

Lady O’Loan favours letting the law take its course. On the face of it, this has much to commend it. Why should Troubles cases be  different from others now that official cover-up is in retreat?

There are four counter arguments. One, the uproar created by the natural bias in favour of findings against the security forces whose actions can be measured against the law. By definition terrorists operate under no such constraints and the arguments over equivalence cannot be extended without limit.

Two,  the  Alice through the Looking glass situation for many, of appearing to accede to the monumental hypocrisy of Sinn Fein demands, whatever their independent merits.

Three, the Historic Enquiries Team’s record  of  satisfaction without prosecutions among victims’ families suggests that prosecutions may not always be necessary to win public confidence. With almost half of the unsolved murder cases closed without a single prosecution against a republican, there’s little reason to believe that the rest will produce  a different outcome.

And four, most important of all, for both sides the war is over; do we really want to revive the old processes?  To launch a major investigation on the ground against retired old warriors who thought it was all  over could unsettle the peace. Sinn Fein would be bound to oppose it and the elements within unionism now favouring closure would be bound to reply in kind.

As part of coming clean generally,  the best idea available is to look again at the Eames-Bradley’s proposal for a legacy commission, with its emphasis on reconciliation rather than the will-o’ the -wisp of individual justice. If there is any hope at all of former paramilitaries ever telling the truth, it lies here rather  in than the unconvincing threat of prosecutions against former paramilitaries, or  one-sided justice applied to the security forces.

The testimony of one principal party to the Troubles has been overlooked: that of government and the security forces high command. The further disclosure of the main record of operations under redaction ( blacking out) should be advanced and given access to genuine scholars, under terms similar to those applied to the release of Cold War intelligence.  Among many other things  revelations about the network of informants would be interesting, to put it mildly. They might even tempt the IRA to tell more of their side of the story.

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London