In dealing with the past, both the state and its legal critics should stop playing games

 “The UK is still in breach of international law for failing properly to investigate unresolved killings, especially and most controversially where state agents might have been involved”.

So  states Brian Gormally the director fo the legal lobby group the Committee on the Administration of Justice, quoting the UN Committee on human Rights, No doubt Nuala O’Loan agrees.

The UK government does not take kindly to lectures from this committee. More potent pressure may come from the “ hooded men” case against the UK government brought  by the Irish government for allegedly misleading the Strasbourg Human Rights court over the five interrogation techniques used after internment in 1971. It’s now claimed they amounted to torture and not merely the “ill treatment “ admitted in the Compton and Parker reports. This could have serious implications for the British government’s reputation and it’s moral authority to criticise other regimes.

Legal activists pin their hopes on the implementation of the Stormont House Agreement which contains the pregnant little sentence

“37.The UK Government makes clear that it will make full disclosure to the HIU (Historic Investigations Unit).”

On the face of it,  that sounds hopeful until a cynical thought intervenes. There is real doubt about what the files will yield up. That presumably is one reason why the pressure continues for full inquiry into Finucane  and the Ballymurphy killings. There is no sign of budging there.  At best most results are years away.  In the meantime the British government seems prepared to grin and bear the criticism which also comes , note, from their new best friends the Irish government.

Far better than a realpolitik calculation to the point of exhaustion over the long drawn out and uncertain nature of legal process would be some disclosure of policy and leadership roles. Legal process is unlikely to deliver for those who were middle aged at the height of the Troubles –and all the more so if the files don’t have much of a story to tell. This is now a process which has become more about history than helping victims and survivors and it is disingenuous to deny it. I suspect the CAJ and their transitional justice colleagues know this full well but are going through the process, as lawyers do.

There is to some extent a counter case, that the State during the Troubles could not deal  with insurgency and communal violence on such a scale only through normal criminal procedures which require an atrocity to happen and then diligently conduct a criminal inquiry into it. Lawyers need to concede some validity to emergency action to be taken seriously across the divide and within the British establishment. They are proving quite easy for the government to brush off.   Attempts  at pre- emption were necessary and inevitable, whatever the legal risks. This was the implication in many verdicts of the Diplock courts, which were generally accepted, however reluctantly. The UK government should have the courage to make the case properly and not hide behind legal technicalities. And let an honest debate begin at last.

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

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