Hints are constantly being dropped that the Executive are close to agreement about setting up the new institutions to deal with the past, basically as laid out in the Haass report two years ago. After last week, it can’t come quick enough. A draft Bill to set up new legacy bodies is ready and waiting. A flood of consequences emerged from some of the worst incidents of the Troubles, lining up to be tackled.
70 murders connected to Loughinisland. At least 50 linked to Stakeknife and perhaps many more. On top of that, new urgency for hearing 50 inquests into 90 deaths,some 40 years old, with more to come. But progress in setting up the new system has stalled and the £150 million that goes with it. The old over burdened system is having to cope under protest. The British government say they will implement when the Assembly can agree a definition of victimhood. But this is disingenuous. The DUP is out of order to delay funding the inquests. But this time, the main problem is in Whitehall.
The most important body is a new independent Historical Investigations Unit with powers to review all Troubles-related cases, including those completed by the Historical Enquiries Team it will replace, after the HET was deemed to be too close to the state. The Unit would take over legacy inquiries from the PSNI and the highly effective Police Ombudsman which has set the standard. According to human rights experts, the main reason for delay is British government restrictions on disclosure on national security grounds.
The human rights experts say the independent HIU should be the arbiter of national security, but they must know that won’t wash. The only ways through are either that the British government submits a definition of national security that satisfies its critics, or that each disputed case is subject to judicial review, if necessary in a closed hearing.
Outside the scope of the Bill, 56 inquests involving 97 deaths have been taken over by the High Court. More are likely to follow. The Lord Chief Justice expressed his disappointment that the Executive had not agreed to the necessary funding before the election. The First Minster ought to explain the delay. Is she really worried that they’ll provide ammunition for “rewriting history?” Does she think that withholding funds will help?
Even without an HIU, it has taken only a couple of cases – very big ones admittedly – to expose what could be the tip of a titanic iceberg.
The inquest on the Kingsmill massacre of 1976 has had to be postponed because of the revelation in the hearing that a palmprint on the getaway car was that of a Louth republican. The Irish News followed up with a complexity tangled even by the standards of the sectarian hell that was south Armagh in the mid 1970s.
First the paper revealed that the republican was Colm Murphy who had been questioned many times as a leading suspect and was later found civilly liable for the Omagh bomb. Next came the Chief Constable’s failed midnight bid to injunct the Irish News paper against publication.
After that,a row over Murphy’s claim to the Irish News reporter that if there had been retaliation for the Kingsmill murders the IRA commander in South Armagh had planned to attack the homes of high profile unionists living along the border in order to force Protestant families from the area.
Finally in this sequence a new story that a dossier used by the late Ian Paisley at the time to name Eugene Reavey as a suspect under House of Commons privilege had been “doctored”. His three brothers had been shot dead in the area the night before and the Kingsmill murders were seen as the reprisal. Three members of the O’Dowd family were also shot on the same night by a UVF gang that it was believed were acting in collusion with members of the UDR.
Kingsmill is not the only case whose full ramifications are still unexplored. The implications of the Loughinisland findings are at least as wide and may lead to prosecutions of former SB officers. In this same week a new police investigation into the Stakeknife informer case will range over 50 murders and will take at least five years.
With such rich material around and subject to further speculation, the temptation will be great for all the political parties to indulge themselves in new orgies of whataboutery.
The British government are opposed to holding any more inquiries like the Cory series which they regarded as a mistake from the start, or reports like de Silva’s on the Finucane murder which was a substitute for the promised public inquiry. They may protest that in the Finucane report and in the Ombudsman report on Loughinisland, disclosure was extensive and highly critical. But they must surely realise they only whet the appetite for more. Do they really believe reviews of perhaps thousands of individual cases will produce general closure in the lifetime of many who lived through the Troubles? And all the more so, when successive chief constables have warned there might not be much information in the unreviewed files anyway?
The Irish News experience shows that public discussion of legacy cases which has gone on for forty years will not easily be suppressed by the usual constraints of further legal inquiry.
Case investigations are necessarily piecemeal although links can then established between them. Anticipating linkage whether it’s established or not, the charge is becoming more and more compelling that, not very far below the radar, it was British policy at some level to turn loyalists inside and outside the security forces into state agents to destroy the IRA at the cost of innocent lives. The alternative explanation is that a large part of the system operated on deniability or was out of control. The “bad apple” theory is looking thin.The charge is too serious to be dismissed by the countercharge that the call for greater official disclosure is politically motivated to make the State look as bad as the Provos.
But the British government still have an impeccable excuse for refusing to open the files other than slowly under case by case compulsion. They have to be withheld as potential evidence. Only last week, and after 40 years, we have seen how old evidence can newly emerge – as Kingmill has just shown ( unless you go for the conspiracy theory that the palmprint is a plant. On the other hand if the evidence wasn’t strong enough to charge him then, why should it be now?).
The overarching charge can best be answered by systematic disclosure rather than slow drip, case by case ; or worse – suppressed for “lack of evidence” or “not in the public interest” by the local DPP. But it looks as if it will take five years of revived investigation to show that legal process will not do it.
If the impression not only of collusion but grossly illegal common purpose with terrorists is misleading, it must be possible for senior figures like Ronnie Flanagan the last RUC Chief Constable and a former head of the Special Branch a man with a high reputation, to give a balanced explanation of what they thought they were doing. It isn’t good enough to hide behind legal process, a victims- centred approach or national security. Part of the explanation should be about what the use of informers achieved. People could then decide for themselves if it was worth it.