Public inquiries into key Troubles events may be the gold standard. But are they any more likely to produce results unless the authorities come clean?

Pat Finucane 

We have three  categories of legacy case in the News apparently unable to advance,  just as there  hundreds of other cases not even contemplated for attention : the 26 outstanding  in Kenova not linked to Stakeknife ; the Disappeared said to be outside the formal Disappeared process ; and the Springhill inquests. Although subject to different legal treatment, they have in common the welter of detail even in the absence of conclusive evidence, the demand for answers and the common failure of existing processes, even quite searching ones, to provide them.

Ironically the gold standard of legacy investigation is about to get under way at last:  the public inquiry into the murder of Patrick Finucane. It is surely clear that the Finucane inquiry serves as no precedent. It was granted to fulfil a broken  promise and as a token of the Labour government’s good faith.

If we needed a reminder of  massive complexity, the Omagh bomb public inquiry is proceeding  according the same gold standard, being just outside the GFA legacy time limitation.

There are, it seems to me, two main reasons for holding full blown public inquiries into the Troubles. One is the inquiry into  a pattern,  more than a single incident, of wilful or otherwise negligence  or culpability by the security forces ; or  as a test case or like a class action for alleged gross violation of legal norms authorised by the state;  the other that it will produce a definitive result,  including the terms for accepting responsibility.  If on the way, the state refuses  to disclose by way of a public interest certificate or by other means, that action by itself will speak volumes. The inquiry the state itself has set up will have demonstrably failed.

I’d be happy to be proven wrong but I doubt if  the Finucane inquiry will  satisfy that legally accomplished and politically influential family, even though their counsel will at last  be able to interrogate witnesses. The government of the day will at least be compelled to pass judgment on its predecessors and state clear terms for future disclosure, if “who called the shots as well as who pulled the trigger” from bottom to top is convincingly demonstrated, not just as lower level  procedure which gave higher ups deniablity  as the de Silva report found.

Attention to progress in both inquiries via live stream will be intense. The path  to conclusion is strewn with obstacles, predictable and unexpected.  Without the constraints of a trial, critics will pounce on anything they suspect is less than complete transparency. But no one seriously argues that the PI is the viable regular legacy procedure. The argument lies elsewhere, over the powers and range of  the Legacy Commission recast in  Labour’s NI Troubles Bill which replaced the Conservatives’  generally loathed Legacy Act.  It takes on the residual role of the Investigations Unit  with sweeping powers  under the original Stormont House Agreement cancelled by the Conservatives along with most  prosecutions.  Conditional amnesty has been removed  to satisfy the conceded right to a fair trial under the ECHR, despite the belief that very little evidence survives. Meanwhile the debate has swung the other way after the painful failures to secure convictions against elderly infirm and ultimately dead veterans ,with Opposition MPs demanding further protection to be written into the Bill for old soldiers.  

So with due respect for legal process,  is not the best recourse to submit cases in deadlock to the recast Legacy Commission under the NI Troubles Bill? Their investigative powers are claimed to be wide and their conclusions can be challenged to their faces in real time, unlike any eventual decisions of the DPP on prosecutions. If satisfaction is not the result, at least we should have a much better   idea of where we are in each case, including  the quality of the arguments for and against  taking  responsibility and whether or not to go further. This does not necessarily happen in a trial and is more appropriate when best evidence is thin to non existent. Then the state or the paramilitaries or both will have to make some sort of reply and risk enduring a public savaging.

Brian Walker

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