Even though Karen Bradley is an embarrassment who should quit but won’t, there is an easier way than Bloody Sunday prosecutions

It is quite an event when a minister has to return to the despatch box of the Commons to correct a misstatement – in this case one so elementary it beggars belief, although in tune with her basic ignorance of local politics.

Speaking in the House of Commons, Mrs Bradley was responding to a question from DUP MP Emma Little Pengelly about legacy issues.

“Over 90% of the killings during the Troubles were at the hands of terrorists, every single one of those was a crime,” she said.

“The fewer than 10% that were at the hands of the military and police were not crimes.

The damage inflicted by the hapless secretary of state on the government’s  reputation shows a lack of basic understanding and unwillingness to learn. It unleashed the predictable torrent of condemnation of criticism from nationalists

Mrs Bradley later returned to the chamber to clarify her comments.

“The point I was seeking to convey was that the overwhelming majority of those who served carried out their duties with courage, professionalism, and integrity and within the law,” she said.

“I was not referring to any specific cases but expressing a general view. Of course, where there is evidence of wrongdoing it should always be investigated whoever is responsible.  These are of course matters for the police and prosecuting authorities who are independent of government.”

But that is exactly  what is in question. In PMQs Theresa May told DUP MP Paul Girvan:

The current system for dealing with crimes from the past in Northern Ireland is not working for everyone. She says around 3,500 people were killed in the Troubles. Most of them were killed by terrorists.  They must be held to account. The MoD will be publishing plans to ensure former servicemen are not prosecuted unfairly.

Over the past couple of nights  back in the real world, the distinguished journalist and historian of the Troubles Peter Taylor presented a couple of reports on the BBC’s News and Ten about Bloody Sunday.  In both he recalled his first visit to Derry on the day it happened,  30 January 1972.  In each  he re-ran interviews recorded  in the 1990s with survivors and a  paratrooper, and then showed fresh interviews with both sides, looking ahead to a decision on whether to prosecute the veterans of 1 Para. Neither report was judgemental;  there was no need. He simply looked ahead to “the law taking its course.”

From the survivors we heard different opinions: forgiveness and a demand for prosecutions despite the long process of the Saville inquiry; from Sergeant O, ” a job well done” in an 1992 interview;  then recently, much reduced by a stroke, an admission that “ some” were innocent but he still had no regrets. Everyone will have his or her own view of the interview. To me he seemed a man who was in obvious denial and for whom a trial would be a severe mental and physical ordeal.

But the interview that struck me most was the short clip from General Lord Richards, former Chief of  Defence Staff. Richards is no Colonel Blimp. He is intellectually self confident and independent He got away with defying political orders when a British evacuation force under his command saved the people of the Sierra Leone capital Freetown from massacre in 2000. In command during the thankless conflict in Afghanistan, he favoured negotiations with the Taliban.  Yet he told Taylor:

Bloody Sunday was part of a war. These are warriors, soldiers who are going into a situation uncertain of what may happen next.

“You might have a split second to take a decision to protect yourself and your comrades in arms.”

From time to time it certainly seemed like a war to me as a frequent observer but usually  at a safe distance.  The army’s opponents indeed thought so and behaved accordingly.  “ He was a warrior” was Gerry Adams’ roar of defiance at the graveside of Martin McGuinness overlooking the Bogside, after the tributes to the man of peace in the church.

But to the state and the states’ servants, a war it was not. Richards  know only too well how misleading he was being and yet he trotted out the old rallying cry.  Is the elementary explanation still needed that the state and individual soldiers  are not permitted  to observe the same standards as the IRA and UVF?

As Saville painstakingly exposed, it just doesn’t  wash to apply the label of warlike just retaliation to Bloody Sunday.  Whatever it was, the 20 minutes of soldiers’ gunfire was no ” split second decision.”  It was to put it at its mildest, a most untypical army operation. Had it been characteristic,  the number of deaths would have run into six figures. Then we really would  have had our “war.”

Over-zealous Army supporters and unionists rightly insist there is no equivalence between the state and paramilitaries. But no equivalence cuts both ways. There is also no one sided justice for soldiers. Theresa May has just confirmed that legislation is being considered to protect soldiers from vexatious prosecution under warlike conditions which sometimes applied in Northern Ireland.

Should the old men be prosecuted?  It surely must be the case that whatever  pressure is applied  from the Conservative right and the military establishment,  it would be very difficult if not impossible to frame a law compatible with human rights to exempt them. Mitigation and special circumstances for soldiers in most cases should be argued out in the courts. We await the emergence of exemptions which would stand up to scrutiny.

We live in an era when all sorts of historic cases are being revisited, from individual murders dating back half a century to tragedies of negligence and incompetence like Hillsborough. Can civil conflict be exempt? Gerry Adams was at least not immune from detention or inquiry in the McGonville case,  though it smacked of gesture tactics. Maybe Bloody Sunday will turn out similarly. Or will the veterans be deemed unfit to stand trial? Whatever the plea or the verdict, I would be amazed if anybody went to gaol.

Last year the British government drafted a legacy Bill and put it out to a consultation which now seems a stalling tactic. The key measure is for an independent Historic Investigations Unit to assume responsibility for legacy investigation from other agencies like the police and police ombudsman, and review the Troubles case files with a view to prosecution. Its brief is under attack on the grounds that it is one sided against the security forces, a view Theresa May and many of her ministers instinctively share.  The claim is made that whereas the state kept files on its own conduct, the paramilitaries didn’t.  This objection seems confused. The authorities have files on all types of case whatever their quality.

Another kneejerk uproar seems inevitable followed by more kicking the can down the road by the government.

Dealing with the past is in the ultimate stalemate. But there is another way if the super patriots cleared their minds to accept it. It was mooted in the unlikely context of a report by the Commons Defence Select Committee and might even enjoy the support of Jeff Dudgeon’s group on the Past and the Newsletter campaign, as I pointed out at the time ( over-optimistically as it turned out )  and as that unfairly stigmatised lawyer Kieran McEvoy, has since explained .

In 2017 the UK House of Commons Select Committee recommended that a “statute of limitations” (an amnesty by another name) be introduced for soldiers and police officers who served in Northern Ireland. Such a move was supported by DUP MPs. With other lawyers who gave evidence to that select committee, I argued that such a move would make prosecuting paramilitary activists extremely difficult – a de facto amnesty. The Defence Committee’s Chairperson Julian Lewis suggested that victims might have to be “big hearted” and accept such a price for protecting ex-military personnel from prosecution.

McEvoy is not alone is suggesting the remedy.     

In 2009, the Consultative Group on the Past, established by Tony Blair, recommended the establishment of a Legacy Commission to run for five years (a truth commission by another name), a Reconciliation Forum and various other measures concerning storytelling, remembrance and a declaration against violence for political ends. With some tweaking, essentially this report provides a way to deal with many of these issues in one place. The current government has published responses to that document but appears uncertain how to proceed.

In the current climate, it is all too easy to use finance as a smokescreen for doing nothing. In this context, however, interminable legal proceedings, the work of Het, Oponi and the rest will continue regardless, and will all cost money. To establish a new overall body would require political will, but it is a more efficient and effective way to actually manage the past. Crafting a time-limited process, engaging lawyers in order to curtail legal expenses, ensuring the voices of victims are heard and respected are all surmountable design challenges. Without such a holistic process, the drip drip of disclosures will continue to destabilise the process.

The British government has since set aside £150 million over five years for the task. The complementary idea is  not blanket amnesty but amnesty in exchange for disclosure while the search for evidence to  prosecution standard goes on. The catch all of “ national security” preventing an opening of the archives would have to be amended.  What elements of national security would be jeopardised now to  justify blanket restriction?  

The problem is that Theresa May is not over endowed with imagination. She also leads a party which has been committed  against an amnesty in principle. The objections  to the legacy Bill root and branch on the grounds that it favours the IRA  narrative over the State are ill founded. They will have the opposite effect to that intended and strengthen the suspicions of state coverup among those already disposed to believe them.

So are we fated to go through  case by case consideration several hundred times for decades  followed by  uproar after uproar?