The Legacy Commission: all set to hold investigations into more than 700 cases over the next eight years, says Declan Morgan

Former chief justice Declan Morgan  told  MPs of the NI Select Committee  this week that  the Legacy Commission he leads has already reached take off before it’s formally set up under the new Troubles Act still going through Parliament.  He  had two aims at the session; to make  the case for adequate funding by arguing value for for money;  and to assure victims groups  and security forces  supporters alike that the Legacy Commission will have the powers and resources to  discover as much of the truth as possible, quicker and in a more focused  way than lengthy and hugely expensive public inquiries and unsuccessful trial procedures. ( See later what’s going on in the Finucane and Omagh inquiries).

Looking forward to a major expansion of truth recovery activity in the coming years,  Sir Declan was keen to give assurances both to MPs seeking to protect army veterans  from legal harassment, and  to survivors and families  suspicious of  state coverup.

At the moment, we have 159 investigations which are through eligibility and which we are working on. We have another 57 cases in case support, which are waiting to come through. So we are looking at a workload of over 200 investigations…  The cases include Guildford, in which there are probably six, seven or eight different events, other than the bomb that went off, that have to be investigated; the M62 bomb; and the 18 people who were killed at Warrenpoint. It is simply not possible to deal with those cases with these sorts of resources.

The pitch  for extra funding

We have put forward a business case to Treasury seeking £628 million. (“Eye watering”,  interjected the Chair).  That includes the £232 million we already have ..   At the minute, we have 189 operational staff  so we have less than half of what the commission needs in order to fulfil its functions, which means we absolutely need the resources to be able to do it…

Our central estimate is 650 investigations. We are now looking at a timeframe that is a month or so short of seven and a half years. We are talking about trying to produce close to 80 to 90 outcomes per year on average. That will be higher in a couple of years’ time than it is at the moment. Our target at the moment is that, by the time the new commission comes into play—we have been working to the date of 1 September—we want to ensure that a report per week is available to come out.

And of those resources were not  forthcoming?. More than a hint of moral pressure .

You asked what happens in the event that we end up in a position where we cannot deal with these cases. We need to impress upon those making these decisions that, in that event, there would be a shedload of people looking for public inquiries. Those will cost a fortune, because public inquiries do. We will have countless victims and survivors, among them veterans and veterans’ families, who will find that they are not being given the truth about what happened. The adverse impact of us not having a workable basis for dealing with all these cases—including those that are very resource heavy, like those I have mentioned does not bear thinking about.

 (The Bloody Sunday inquiry cost over £200mn  with costs arising and Grenfell ££170 mn on the inquiry alone and with consequences added, over £ 1 billion). So the Legacy Commission is value for money he insists.

The  Republic’s role

Morgan was particularly concerned  to stress delivery for families who have to have confidence in the commission for it to even exist. Dublin’s response is a current problem he believes will be solved once they  register the passage of the Legacy Act. At the moment ,bluntly, he has had no response  for information on 11 cases involving 31 deaths.  And he warned:      

There are approximately 500 deaths along the border, in respect of which a number of support groups are intimately involved. Their indication to us is that many of the people who lost loved ones in those events are not going to take part in this process unless they feel that information from Ireland can be secured. For instance, the bomb in the Warrenpoint case was detonated from the Republic of Ireland. That seems clear, but we have no information. At this stage, we would not be able to ensure that we could get information in relation to what happened there, and it does not seem likely that that will be provided to us before the political issues are resolved.  ..Cross border cases alone into three figures.  

No references were made at this hearing to the  fundamental criticisms of the Troubles Act made by an Oireachtas Committee last week. Unless they were addressed, the committee recommended a delay in cooperating with the Legacy Commission

 Sensitive information sharing

Sharing  security  information from either side of the border with the commission is a genuine problem.

If we were to try to replicate the protections within the UK space for Ireland’s national security interests, it becomes extremely difficult to see how that works. .. The political solution may come as we go through the legislative process, and we would hope that that will be the case.  Although there was good will from the Garda Commissioner, for instance, when we met him to put matters in place, and although the authorities in the Republic of Ireland are putting together procedures, one thing that occurred to me is what happens if there is an investigation in the Republic of Ireland in relation to a legacy matter. Will there be reciprocation from our  Security Service and others in relation to providing full and unredacted information to the Irish authorities, on the basis that they will have some method of protecting all that? That is really what we are talking about if we are talking about exchange.  I think that that indicates that this is a complex, difficult, sensitive issue, which the MI 5 Governments are going to have to work out.

MI5

On the  controversial issue of the role of UK national security , expressed as  “neither confirm nor deny” from MI5 and dealing with deep suspicion of  collusion and army operations coverup, Morgan sounded a strong note of  confidence that these can be overcome

I welcome the fact that the commission has been given the power to appeal against the Secretary of State’s determination in relation to national security. That is an important power and it is important that the new commission should be seen to be exercising that role. For me, that is the biggest plus for the commission because it will be in a good place to make a judgment. It will have seen the material. It will form the view. It will understand, in terms of the dialogue it will have with the Secretary of State, what the national security issues are and, on the other side, what the public interest issues are. It is helpful from everybody’s point of view that the commission should be a party to those proceedings and in a position to initiate them if it considers it appropriate.

He was impatient at the length of time it takes to get replies from MI5

 I have some experience of the way in which national security works. I do not think expedition is one of its big attributes, as far as I can see. I think you may have an opportunity to take that up with the Secretary of State at another stage.

 New role for the English Attorney General

He was all too aware  that the decision to give the Attorney General of England and Wales sign off rights for prosecutions was unpopular with the legal establishment in NI and could end up in judicial review on conflict of interest grounds  “ I will dance myself off that particular podium.”   

Protection for veterans from repeated inquiry      

Almost an obsession among Conservative MPs. A careful reply:

 As is clear from the umpteen court cases that have occurred in this area, every account that somebody gives, particularly if the period they are speaking about was a long time ago, needs to be seen as vulnerable in terms of its reliability and accuracy. In this sort of territory, where you are looking back over many years at events—some of which may be memorable; some of which may have passed in a cloud of other experiences people had during that time—you have to be quite careful about thinking that there is a need to engage further.

 Summing up

One should not underestimate the effect of the controversy over whether the Bill is actually going to be there. If the legislative provisions on both sides of the border come into play, this is going to be the opportunity for countless people to get the answers they have been looking for.

We do not pretend to people that we will always find the truth of what happened, but we do indicate that we will take every possible step to try to do that. As long as people walk away from that, it gives them the opportunity—I’m not saying to move on—at least to think about the future and feel that they have done everything that they can to deal with the issues of the past.

Declan Morgan avoids old style judge speak. He talks incisive human with confidence and a touch of asperity that earns him respect. You’re left with the feeling that if Morgan fails to do truth recovery well, nobody can.

Finally, a look at  the current state of the two major public inquiries.

First Omagh

  The man who led the Omagh bomb investigation has said he believes a covert agent was involved in the atrocity.

Norman Baxter outlined his suspicion that an informer had driven the bomb to the Co Tyrone town as he gave evidence to an inquiry investigating the 1998 massacre.

Mr Baxter said that had more action been taken against the Real IRA unit responsible prior to the attack, there was a “high level of probability” the bomb could have been prevented.

The Pat Finucane Inquiry

The Pat Finucane Inquiry must determine the “extent of MI5’s awareness and involvement” with a UDA agent linked to the solicitor’s murder, counsel has said.

The inquiry’s chairman, Sir Gary Hickinbottom, has heard he must evaluate whether there has been “missed or overlooked material” from MI5 in previous probes into the killing.

Counsel compared the issue to Operation Kenova, where the late disclosure of MI5 documents led investigators to reverse their conclusions on the level of security force knowledge of and involvement with the agent known as Stakeknife.